Opinion
No. 58359-0-I.
February 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 05-1-13118-3, Laura C. Inveen, J., entered June 12, 2006.
Affirmed by unpublished opinion per Cox, J., concurred in by Agid and Appelwick, JJ.
Efrain Romero appeals his conviction for one count of felony violation of a court order-domestic violence, one count of misdemeanor violation of a court order-domestic violence, and one count of tampering with a witness-domestic violence. The court did not abuse its discretion in admitting 404(b) evidence of his prior assaults against the complainant in this case. Moreover, admission of this evidence without a limiting instruction that the court orally ruled it would give was not improper. Assuming counsel's failure to tell the court when to give the limiting instruction for the 404(b) evidence fell below an objective standard of reasonableness, Romero fails to show prejudice. There was no violation of his constitutional right to present a defense when the trial court excluded a letter allegedly written to him by the complainant. And there was sufficient evidence to convict him of tampering with a witness. Finally, his convictions should not be reversed under the cumulative error doctrine. We affirm.
We grant Romero's Motion for Leave to File Supplemental Assignment of Error and Supplemental Brief.
On December 15, 2005, police responded to a call to Melinda Brace's apartment where they found Romero and arrested him for assaulting Brace. At the time of the arrest, a court order was in effect prohibiting Romero from having contact with Brace.
From jail, Romero sent Brace a letter through a third party. In the letter, Romero encouraged Brace to write a letter to his attorney in which Brace should deny that the assault occurred. He also asked her to have the letter notarized. In a post-script, Romero warned Brace: "what goes around, comes around."
The State charged Romero with one count of felony violation of a court order-domestic violence, one count of misdemeanor violation of a court order-domestic violence, and one count of tampering with a witness-domestic violence.
At trial, Brace recanted most of her original statements to police. She denied that an assault had ever occurred. Brace minimized the incident, explaining that she and Romero had just argued because she had caught him cheating on her. And she attempted to explain away her physical injuries. The trial court allowed the State to present evidence of previous violence between Romero and Brace to impeach Brace's denials at trial. It also admitted statements she had made to officers at the scene of the assault.
The jury convicted Romero as charged.
Romero appeals.
404(B) EVIDENCE
Romero argues that evidence of his prior assaults against Brace, in the absence of a limiting instruction, requires reversal of his conviction. We disagree.
Under ER 404(b), evidence of "other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, such evidence may be admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The list of "other purposes" for admitting evidence under ER 404(b) is not exclusive. Prior acts of domestic violence involving the defendant and the crime victim are admissible in order to assist the jury in judging the credibility of a recanting victim.
ER 404(b).
State v. Kidd, 36 Wn. App. 503, 505, 674 P.2d 674 (1983).
State v. Grant, 83 Wn. App. 98, 100, 920 P.2d 609 (1996), cited with approval in State v. Magers, 164 Wn.2d 174, 185-86, 189 P.3d 126 (2008).
If evidence of other crimes, wrongs, or acts is admitted under ER 404(b), the trial court must give a limiting instruction to the jury upon request. But a trial court does not have a duty to give a limiting instruction sua sponte. And, "[i]n the absence of either a violation of a constitutional right or a request to instruct there can be no error assigned on appeal for failure to give an instruction."
ER 105; State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007).
State v. Noyes, 69 Wn.2d 441, 446-47, 418 P.2d 471 (1966).
State v. Scott, 93 Wn.2d 7, 14, 604 P.2d 943 (1980).
We review a trial court's evidence rulings for an abuse of discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.
State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, Romero argues only that the trial court failed to give a proper jury instruction. He does not otherwise challenge the admission of evidence of his prior bad acts.
The State made a pre-trial motion to allow certain statements Brace made to police officers. The State sought to explain the history of domestic violence in Romero and Brace's relationship to help the jury evaluate Brace's credibility. The State argued that some of the statements were admissible as excited utterances and others should be admitted, if necessary, to impeach Brace's trial testimony. The statements revealed that Romero had previously assaulted Brace and that she feared retaliation from him for cooperating with the police.
See Grant, 83 Wn. App. at 100 and Magers, 164 Wn.2d at 185-86 (Prior acts of domestic violence involving the defendant and the crime victim are admissible in order to assist the jury in judging the credibility of a recanting victim.).
The trial court orally granted the State's motion, relying on State v. Grant. Romero then requested a limiting instruction for the statements that the State would use to impeach Brace. After hearing arguments on the appropriate wording of the instruction, the trial court clarified that it would give such an instruction and when its use would be necessary:
83 Wn. App. 98, 100, 920 P.2d 609 (1996), cited with approval in State v. Magers, 164 Wn.2d 174, 185-86, 189 P.3d 126 (2008).
The Court:. . . . And I think we're primarily talking about Melinda Brace, aren't we?
[Prosecutor]: She would be the only person.
The Court: So the instruction would read, before this evidence is allowed, the Court advises you that you may consider this evidence only for the purpose of assessing the credibility of Melinda Brace. You must not consider the evidence for any other purpose.
And so I will need to be alerted to the appropriate time to read that. ]
Report of Proceedings (April 20, 2006) at 111 (emphasis added).
Report of Proceedings (April 20, 2006) at 111 (emphasis added).
Romero did not request a limiting instruction during Brace's testimony, as the court plainly directed. Nor did he request such an instruction at the time the court heard arguments regarding the final written instructions to the jury. Finally, Romero did not take exception to the court's failure to give such an instruction. Romero does not argue that any constitutional right is involved. Consequently, this issue was not preserved for appeal.
See Scott, 93 Wn.2d at 14 ("In the absence of either a violation of a constitutional right or a request to instruct there can be no error assigned on appeal for failure to give an instruction.").
Romero contends that the record is unclear as to whether the trial court read the limiting instruction to the jury. But the instruction does not appear in the record on appeal. We must presume that no such instruction was given. And there is nothing in the record to show that he requested the court to give the instruction that it had approved in its oral ruling.
In his supplemental brief, Romero argues that the supreme court's decision in State v. Magers does not foreclose his contention that the limiting instruction in his case was inadequate under Division Two's holding in State v. Cook. This argument, however, ignores the fact that Romero failed to request a limiting instruction at trial, precluding appellate review. The propriety of a limiting instruction is not before us since none was given.
164 Wn.2d 174, 189 P.3d 126 (2008).
131 Wn. App. 845, 129 P.3d 834 (2006).
See Scott, 93 Wn.2d at 14.
INEFFECTIVE ASSISTANCE OF COUNSEL
Romero argues that his counsel was ineffective for either failing to propose a proper jury instruction or inviting an erroneous instruction. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial. The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that the verdict would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. If one of the two prongs of the test is absent, we need not inquire further.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 336.
Matter of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Here, because the record does not show that the trial court ever gave the limiting instruction at issue, we need not consider Romero's claim that the language of the proposed instruction was inadequate. Instead, the only issue is whether trial counsel's failure to request a limiting instruction violated Romero's right to the effective assistance of counsel.
Assuming without deciding that counsel's failure to specify when to give a limiting instruction, as the court expressly directed counsel to do, fell below an objective standard of reasonableness, Romero fails to establish that there is a reasonable probability that but for his counsel's performance the outcome of his trial would have been different. The focus of the impeachment questioning at issue was on challenging Brace's testimony that Romero had never assaulted her.
See Strickland, 466 U.S. at 694.
Significantly, the record contains overwhelming evidence of guilt. This was not a close case as described by Romero at oral argument.
Through testimony of Brace's mother and responding officers, the jury heard Brace's excited utterances describing the assault on the day of the incident. The State also impeached Brace's testimony with her statements to Detective Vradenburg and a Department of Corrections hearing officer.
Brace's mother testified that on the day of the incident, Brace called her while crying and upset. Her mother asked if Romero had hit her, and Brace said "yes." Her mother called 911.
Romero's probation officer, Kamberly Warner, also testified that Brace called her on the day of the incident. Brace told Warner that Romero had hit her, and Warner also called 911.
The responding officers testified that no one initially answered the door of the apartment. They left the area and returned after receiving a second call about the incident. Upon returning, the officers heard a loud verbal argument going on inside the apartment. The apartment got very quiet when the officers knocked and announced their presence. When they forced the door open, the officers found Brace in a bedroom. She seemed afraid, nervous, and hesitant. She relaxed somewhat and started talking to Officer Wolfs only when officers removed Romero from the apartment. Brace told the officers that Romero had hit her. The officers observed that Brace had injuries, including bruises and cuts on her upper lip, the back of her head, and a finger. Romero appeared angry, threatening, controlling, and upset to the officers.
Detective Vradenburg also testified that Brace gave a detailed description of the assault and her injuries five days after the incident. Less than two weeks later, Brace gave another consistent statement of the assault at a Department of Corrections hearing via telephone. Brace told the hearing officer that she did not want her statement to be transmitted through the speaker phone because she did not want Romero to hear her. She said she was too scared to get on the speaker phone.
Given this overwhelming evidence of guilt, including Brace's contemporaneous statements to her mother and officers and the evidence of her injuries, there is no reasonable probability that the outcome of the trial would have been different had Romero's counsel requested the limiting instruction. There is simply no showing of prejudice, assuming deficient performance by defense counsel in not prompting the court to give the limiting instruction.
RIGHT TO PRESENT A DEFENSE
Romero argues that the trial court violated his right to present a defense by excluding a letter allegedly written by Brace and denying his motion to recall Brace as a witness. We disagree.
A defendant in a criminal case has a constitutional right to present a defense consisting of relevant evidence that is not otherwise inadmissible. Nonetheless, the admission or refusal of evidence lies largely within the sound discretion of the trial court. The right to recall a witness for further cross-examination is also within the discretion of the trial court.
U.S. Const. amend. VI, XIV; State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006), review denied, 159 Wn.2d 1022 (2007).
State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306 (1987).
State v. Johnson, 64 Wn.2d 613, 615, 393 P.2d 284 (1964).
Division Two addressed the question of recalling witnesses in State v. Williams. There, the court found no abuse of discretion where (1) the defendant had ample opportunity to cross-examine the witness the first time she testified; (2) he could have asked the witness to be in attendance the next day; (3) the defendant did not subpoena the witness or otherwise arrange for her to re-appear in court at the proper time; (4) he offered to prove no more than what was already inferable from the testimony she had given; and (5) the evidence against him, including his confession, was overwhelming and it was apparent from his offer of proof that recalling the witness would make "virtually no difference" to the case.
118 Wn. App. 178, 73 P.3d 376 (2003).
Williams, 118 Wn. App. at 183-84.
The supreme court has also found no abuse of discretion where a trial court did not allow a defendant to recall a witness whom he had cross-examined extensively earlier in the trial.
Johnson, 64 Wn.2d at 615.
The first three factors from Williams weigh in favor of affirming the trial court's denial of Romero's motion to recall Brace. Romero had ample opportunity to cross-examine Brace the first time she testified and did so. He could have asked Brace to be in attendance for the remainder of trial. He did not subpoena Brace or otherwise arrange for her to re-appear in court. He sought to recall her as a witness for the limited purpose of introducing a letter that the trial court did not allow into evidence. The trial court's decision to deny Romero's motion to recall Brace was well within the range of acceptable choices.
Romero next argues that the trial court abused its discretion in excluding a letter allegedly written to him by Brace. After a 10-day break in the trial and on the last day of trial, Romero introduced and sought to admit the letter as a prior consistent statement. Romero had given the letter to his counsel that day. Counsel made an offer of proof that the letter was written and received in early January of 2006. The State argued that the letter was not dated in any way, that it was "incredibly convenient" for Romero to produce the letter on the last day of trial, and that it could not be authenticated.
After reviewing the document and hearing arguments, the trial court stated that it was "too late" to present the letter because Romero "obviously did know about it, given the fact that he . . . received it in January." In response to his argument that he was being denied the right to present a case and rebut the prosecutor's inferences, the court stated, "[T]he fact of the matter is this was all within your client's control and knowledge. And I find that he has waived the right to raise that by not bringing it to [defense counsel's] attention before today."
Romero argues that this ruling denied his constitutional right to present a defense. But the excluded letter was apparently in his possession long before he brought it to his counsel's attention. Given the late date at which the letter was presented, together with his own contribution to the alleged error, Romero simply fails to show that the trial court denied him the opportunity to present a defense. As the trial court correctly observed, the issue of the letter should have been raised during the defense's cross-examination of Brace.
Moreover, the letter at issue was inadmissible hearsay. Hearsay is "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." The hearsay rule excludes hearsay from being admitted as evidence except as specifically provided by the rules of evidence, court rules, or statute.
ER 801(c).
ER 802.
Prior consistent statements of a witness are not hearsay if offered to rebut the suggestion of recent fabrication. ER 801(d)(1)(ii) provides:
A statement is not hearsay if —
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is . . . (ii) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive . . . [.]"
A statement that merely corroborates a witness's earlier testimony is generally inadmissible as irrelevant under ER 401-403. The rule allows admission of a witness's out-of-court statements to rehabilitate testimony that has been impugned by a suggestion of recent fabrication. The prior statement must have been made before a motive to falsify has arisen.
State v. Bargas, 52 Wn. App. 700, 702, 763 P.2d 470 (1988).
Id.
Id. at 703 (additional emphasis added).
Here, without any way to identify the specific date on which the letter was written and received other than by Brace's or Romero's testimony, it would have been impossible for the trial court to determine that the prior statement was made before Brace's motive to falsify had arisen. And the State argues, perhaps correctly, that Brace's motive to lie actually arose before she even gave statements to the officers, given her admission to Officer Wolfs that Romero had beaten her in the past when she cooperated with police.
The trial court did not abuse its discretion in excluding this evidence. Romero's right to present a defense was not violated.
SUFFICIENCY OF EVIDENCE
Romero argues that there was insufficient evidence to convict him of tampering with a witness. We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.
State v. Hendrickson, 129 Wn.2d 61, 81, 917 P.2d 563 (1996).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A person is guilty of tampering with a witness if he "attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding . . . to testify falsely."
Romero argues that he is not guilty of witness tampering because the basis for the charge, his letter to Brace asking her to write a letter to Romero's defense counsel saying that she had lied, did not describe an inducement of false testimony. He argues that the letter "merely requests Ms. Brace to communicate to his defense counsel that the charge against him was not based on true facts."
He also argues that the letter did not request that Brace testify falsely in some "official proceeding" because it only asked her to get the statement notarized. The jury instructions below defined "official proceeding" as "a proceeding heard before any legislative, judicial, administrative or other government agency or official authorized to hear evidence under oath."
Division Two addressed an almost identical fact pattern and arguments in State v. Lubers. In that case, the defendant asked a witness to write a letter to his defense attorney saying that the witness had lied in his earlier statement to the police and accusing someone other than Lubers of the charged rape. Taking the evidence in the light most favorable to the State, the court found that the witness was about to be called as a witness in an official proceeding and that Lubers had asked him to make a false statement, effectively recanting his earlier statement to the police. The court concluded that sufficient evidence existed for a rational trier of fact to find the statutory elements for witness tampering beyond a reasonable doubt.
81 Wn. App. 614, 915 P.2d 1157 (1996).
Lubers, 81 Wn. App. at 621-22.
Id.
Id.
Similarly, here, Romero wrote a letter to Brace, whom he had reason to believe was about to be called as a witness in court, an official proceeding. In the letter, Romero asked Brace to write a letter to his defense counsel explaining why she called the police ("because you were high off PCP and cocaine") and why they were arguing (because Romero would not give her money). He also asked her to explain that she had lied to Romero's probation officer to scare Romero and told her to say that "I didn't assault you at all." He also asked her to say that she felt pressured to lie to the police at the time of the incident and to explain that the cut on her lip and her bruises were the result of her fight with a friend. The letter twice reminds Brace that he has a trial in the next month. It also asks Brace to get her statement notarized before sending it to his attorney.
Though Romero characterizes the letter as merely requesting Brace to communicate true facts, the letter actually asks her to relate his near-complete version of the events leading up to his arrest.
Taking the evidence in the light most favorable to the State, there is sufficient evidence to conclude that Romero attempted to induce Brace, whom he had reason to believe was about to be called as a witness in his trial, to testify falsely. Romero effectively asked Brace to recant her earlier statements to the police. He did not ask her to tell the truth, but, instead, he asked her to give the version of events he provided to her. The fact-finder could reasonably infer that the request for a notarized statement was a precursor to inducing the witness to give the same false testimony at trial.
Next, Romero argues that the evidence is insufficient to support his conviction because there is no evidence that he threatened Brace or offered her any reward, as is required under State v. Rempel. But the lack of a threat or reward was only one of many factors that the court relied on in overturning Rempel's conviction for witness tampering. And here, Romero's letter tells Brace several times that he "needs" her to do what he asks, and then warns: "what goes around comes around." In the context of their violent relationship, a rational trier of fact could conclude that this was a true threat.
114 Wn.2d 77, 785 P.2d 1134 (1990).
Rempel, 114 Wn.2d at 83-85.
CUMULATIVE ERROR
Romero argues that cumulative error denied him a fair trial. This doctrine does not apply to his case.
Where several errors standing alone do not warrant reversal, the cumulative error doctrine requires reversal when the combined effects of the errors denied the defendant a fair trial.
State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
Here, there was no cumulative error because, at most, the only legitimate error was defense counsel's failure to request a limiting instruction, and the effects of that error did not result in any prejudice to Romero.
We affirm the judgment and sentence.
WE CONCUR: