Opinion
No. 61012-1-I.
November 10, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-02483-7, Michael T Downes, J., entered December 7, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION.
Michael Pellegrini was convicted of attempted assault in the second degree (domestic violence) by strangulation. He argues that his conviction should be reversed because (1) the trial court should have allowed the victim to testify that, in her opinion, Pellegrini did not intend to strangle her and (2) his trial counsel was ineffective for failing to ask the court to instruct the jury on involuntary intoxication. We affirm.
FACTS
Ashley Peterson was Pellegrini's girlfriend. On August 5, 2007, Peterson and Pellegrini had lunch at a pub in Snohomish. They were at the pub from eleven in the morning until approximately five in the evening, eating, and drinking Bloody Marys. After leaving the pub, they went to a sports bar where both Peterson and Pellegrini continued drinking. Not long after arriving at the sports bar, Pellegrini left. He said he would be back, but he did not return as soon as Peterson expected, so she and a friend went looking for him. After a while, Peterson and her friend sat down outdoors on a bench. Pellegrini walked toward them, and Peterson asked him why he left. She accused him of lying when he denied leaving to take drugs. They started yelling at each other, and before long, Peterson found herself lying in the street.
People in a coffee shop heard Peterson and Pellegrini arguing. They saw Pellegrini put his hands around Peterson's throat and saw Peterson fall to the ground. Pellegrini fled when people ran out of the coffee shop to help Peterson.
A police officer arrived fewer than five minutes after the incident occurred. He found Peterson crying and saw red marks on her throat. The officer took her to the police station to take her statement and photograph the marks on her neck.
Pellegrini was charged with attempted second degree assault by strangulation. Before trial, the State asked the court to exclude evidence of Peterson's opinion regarding what Pellegrini intended when he placed his hands around her neck. The State expected Peterson to testify that she did not think Pellegrini intended to hurt her. Pellegrini argued that Peterson's opinion as a lay witness was admissible under ER 701 and was relevant because intent to commit an assault by strangulation was an element of the crime. The trial judge ruled that he would not allow Peterson to testify about her opinion of what Pellegrini intended unless Pellegrini laid a foundation to show that Peterson had reason to know what he intended:
[Y]es, lay people can testify as to their opinion and, yes, whether or not the defendant intended to strangle or occlude the airway of the alleged victim is relevant, but that begs the question of how it is that the alleged victim would know or what puts her in a position to know what was in his mind. And unless there is some foundation to establish such a thing, I don't see how she gets to testify what he was thinking at the time he did some act. . . .
In the absence of some foundation being laid that would allow for her to have such an opinion as to what was in his mind at the time, the motion is going to be granted. If you have some evidence that I haven't heard about that [sic] affecting this decision, I'm happy to hear it outside the presence of the jury.
Pellegrini did not provide additional evidence to establish a foundation for Peterson's alleged knowledge, and Peterson did not testify about her opinion of Pellegrini's intent. A jury found Pellegrini guilty as charged.
ANALYSIS
Pellegrini argues that the trial court abused its discretion and violated his right to present a defense by excluding evidence that, in Peterson's opinion, Pellegrini did not intend to strangle her. He contends that Peterson's opinion was relevant because to prove him guilty, the State needed to show that he intentionally attempted to assault Peterson by strangulation. But the court did not err because Pellegrini did not establish that Peterson had a rational basis for her opinion.
See RCW 9A.36.021(1)(g) ("A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: [a]ssaults another by strangulation."); RCW 9A.28.020(1) ("A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime."). "`Strangulation' means to compress a person's neck, thereby obstructing the person's blood flow or ability to breathe, or doing so with the intent to obstruct the person's blood flow or ability to breathe." RCW 9A.04.110(26).
A lay witness's opinion testimony is admissible only if it is "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of rule 702." ER 701. An opinion is rational if it is based upon knowledge.
State v. Kunze, 97 Wn. App. 832, 850, 988 P.2d 977 (1999).
Pellegrini argued that Peterson's opinion regarding his intent should be admitted because she had personal knowledge of the argument preceding his actions. But knowing what they were arguing about did not give Peterson a rational basis for her opinion that Pellegrini did not intend to strangle her.
Pellegrini cites City of Seattle v. Heatley in support of his argument, but that case shows why the trial court's ruling was correct. Heatley was found guilty of driving while intoxicated. On appeal, he argued that a police officer should not have been allowed to testify that he was obviously intoxicated and unable to drive in a safe manner. Heatley contended that the officer's opinion encompassed what was essentially the only disputed issue and, therefore, constituted an improper opinion that he was guilty of driving while intoxicated.
70 Wn. App. 573, 854 P.2d 658 (1993).
The court explained that opinion testimony may not be excluded on the basis that it encompasses an ultimate issue of fact if it is "otherwise admissible." But an opinion lacking proper foundation is not admissible under ER 701.
Heatley, 70 Wn. App. at 578-79; see also ER 704 ("Testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.").
Heatley, 70 Wn. App. at 579.
In Heatley, the trial court properly allowed the police officer to testify that Heatley was intoxicated because the State had established the foundation for the police officer's opinion. It "was based solely on his experience and his observation of Heatley's physical appearance and performance on the field sobriety tests. The evidentiary foundation `directly and logically' supported the officer's conclusion."
Heatley, 70 Wn. App. at 579 (quoting State v. Allen, 50 Wn. App. 412, 418, 749 P.2d 702 (1988)).
Pellegrini contends that Peterson's opinion testimony was relevant and would not have been a direct comment on his guilt or innocence. But the trial court did not exclude Peterson's opinion because it would have addressed the ultimate issue of fact. Rather, her opinion was excluded because Pellegrini did not show that Peterson had a rational basis for her opinion.
Pellegrini argues that the trial court's decision to exclude Peterson's opinion testimony deprived him of his "absolute right" to present a defense. But a defendant does not have an absolute right to present all evidence that could be helpful to his defense. Even relevant evidence may be excluded if constitutional requirements, a statute, or a court rule prohibits its admission. The trial court has broad discretion to determine whether to admit or exclude evidence, and the decision will not be reversed on appeal unless the appellant establishes that the trial court abused its discretion. A trial court abuses its discretion only if no reasonable person would rule as the trial court did.
State v. Lord, 161 Wn.2d 276, 294, 165 P.3d 1251 (2007). Pellegrini cites two United States Supreme Court cases in support of his assertion that he had an absolute right to present evidence that was helpful to his defense, but both of those cases recognized limitations on a defendant's rights under the Confrontation Clause. See Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L.Ed. 2d 1019 (1967) (state procedural statute denied defendant his right to have compulsory process for obtaining witnesses in his favor, but opinion did not deal with nonarbitrary state rules regarding witness disqualification); see also Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987) (defendant did not have constitutional right to search State's child abuse files for exculpatory information that might aid cross-examination).
ER 402 ("All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of this state.").
State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).
Demery, 144 Wn.2d at 758.
Because Pellegrini failed to establish a proper foundation for Peterson's opinion regarding Pellegrini's intent, the trial court did not abuse its discretion by excluding that evidence.
Pellegrini next argues that he received ineffective assistance because his trial counsel failed to request an instruction on voluntary intoxication. His argument fails.
A jury may be instructed on voluntary intoxication only if there is substantial evidence that the defendant's drinking affected his ability to form the necessary mental state to commit the charged crime. By itself, evidence of drinking is not enough to warrant the instruction; there must be substantial evidence that the alcohol affected the defendant's mind or body. Moreover, to establish that counsel was ineffective, the defendant must prove that counsel's performance was deficient and, as a result, the defendant was prejudiced. If either part of the test is not satisfied, an ineffective assistance of counsel claim fails.
State v. Gabryschak, 83 Wn. App. 249, 252, 921 P.2d 549 (1996).
Gabryschak, 83 Wn. App. at 253.
State v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145 (2001).
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Pellegrini has not established that his defense counsel's performance was deficient because the record does not support a voluntary intoxication instruction. Although there was evidence that Pellegrini was drinking from lunchtime until early evening, there was no evidence showing that his mind or body was so affected by alcohol that he could not form the intent to strangle Peterson. There was no evidence that he slurred his words, stumbled or appeared confused, was disoriented as to time and place, or otherwise exhibited signs of intoxication sufficient to conclude that he could not form the requisite intent of the charged crime. Pellegrini's ineffective assistance claim fails.
See Gabryschak, 83 Wn. App. at 253-55 (although witnesses testified that Gabryschak was intoxicated, the trial court did not err by rejecting a voluntary intoxication instruction because the evidence was insufficient to show he was too intoxicated to form the required level of culpability to commit the crimes).
CONCLUSION
The trial court did not abuse its discretion when it excluded Peterson's opinion that Pellegrini did not intend to strangle her, and Pellegrini has not established that he received ineffective assistance of counsel. The decision of the trial court is affirmed.
Because we do not agree that the trial court erred, we do not address Pellegrini's argument that his conviction should be reversed based upon the cumulative effect of the trial court's errors.
For the Court: