Opinion
No. 50565-3-I.
Filed: April 19, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 00-1-00808-5. Judgment or order under review. Date filed: 05/29/2002. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Stephen Earl Sivo (Appearing Pro Se), Washington State Pennitentiary, 1313 N. 13th Avenue, Doc# 804715, Walla Walla, WA 99362.
Counsel for Respondent(s), David Stuart McEachran, Whatcom Co Courthouse, 311 Grand Ave, Bellingham, WA 98225-4048.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Stephen Sivo appeals his conviction of one count of first degree felony murder predicated on robbery. Because Sivo did not receive effective assistance of counsel, we reverse and remand for a new trial. We also conclude the trial court erred by not giving an excusable homicide instruction and by excluding testimony from Sivo's former attorney as irrelevant.
FACTS
On August 1, 2000, appellant Stephen Sivo threw a party at his home in Kendall, Washington. The victim, Melvin Bass, whom Sivo had known for several years, attended the party. There is conflicting testimony about whether Sivo invited Bass to the party or told him before the party he was not welcome. During the party, Nate Williams and Dennis Smith began to argue on the front porch. Bass intervened and encouraged the two men to fight. Dennis said something to Bass, and Bass punched him, causing him to fall off the porch. Dennis left, saying that he would be returning with his older brother, Juston. After the incident, Sivo allegedly asked Bass again to leave his house. Bass left the party with a friend, Rachel Gordon, to buy more beer, but he planned to return.
At the store, Rachel saw Bass pay for the beer with money out of his pocket, which she said totaled $20-$30. Earlier that evening, another guest at the party, Shawna Thunstrom, saw Bass with a one-inch thick wad of bills that he put in his front pocket. Meanwhile, Dennis' brother, Juston Smith (Smith), arrived at the party looking for the person who punched his brother. Smith asked one of the guests to call him when Bass returned from the store, and she did. Smith returned to the party, called Bass out onto the porch, and they proceeded to get into a heated argument. Smith was much smaller in stature than Bass, and neither man had a weapon. Bass yelled at Smith about fighting with him. From this point forward, there are conflicting accounts about what exactly occurred.
No one knew whether Bass had a weapon at the time the fight occurred.
What exactly Bass yelled is in dispute. One witness testified he yelled, `If you're going to talk, talk. If you're going to fight, fight.' Smith testified that Bass said, `Now we're going to fight, mother fucker.'
The State's witnesses testified that Bass was not making any aggressive movements toward Smith when Sivo came forward and hit Bass in the head with a baseball bat. One witness testified that Sivo `patt[ed] [Bass] down' after he struck him with the bat. The witnesses for the defense claimed that Smith was trying to calm Bass down, and only when Bass was about to strike Smith, did Sivo hit him with the bat. Smith testified that Bass was inches from his face, he was extremely frightened, and he tried to get around Bass, but the porch was too crowded to do so. Smith stated that Bass put up his fists, he believed his life was at risk, and just as Bass was about to punch him, Sivo struck him with the bat. Sivo testified that he saw Bass reach toward his pocket with his right hand, and he believed Bass was either reaching for a weapon or pulling back to strike Smith. Sivo stated he did not think he could successfully grab Bass because he had a cast on one hand and was limited by injuries he sustained in 1999. He saw the baseball bat, grabbed it, and struck Bass twice once after he had fallen because he believed that degree of force was necessary to protect Smith from Bass. He stated he only intended to knock Bass unconscious. After the incident, Sivo and his friends put Bass in the back of Bass' pick-up truck and drove to a pay phone. Sivo called 911, stated there was a man needing medical assistance at that location, left the receiver off the hook, and had a friend drive him back to his house. The police responded to the scene where they found Bass without a pulse and not breathing. Bass was wearing his watch and a necklace and the wallet in his pocket contained a $100 bill. He also had a small amount of money in his pants' pockets and in the glove box of his truck. The police found the truck keys in the ignition, as well as other valuables in the truck. The paramedics pronounced Bass dead on the way to the hospital. The police arrested Sivo for killing Bass after a person who knew him identified his voice on the 911 tape.
Sivo has fused vertebrae and a metal plate in his neck.
The State charged Sivo with first-degree felony murder on the theory that Sivo killed Bass in the course of first-degree robbery or alternatively, second-degree murder predicated on second-degree assault. At trial, the State offered testimony from jailhouse informant William DeLong. According to DeLong, Sivo talked openly about what occurred the night he killed Bass both on the telephone to his family and to other inmates. DeLong said that Sivo indicated he had planned to kill Bass even before the incident occurred on the porch, he had wanted him dead for a long time, and he was glad he killed him. He also testified that Sivo said he convinced witnesses to testify consistently with his self-defense claim and arranged for a prosecution witness to be out of town for trial. DeLong also stated that Sivo admitted to taking everything out of Bass' pockets.
DeLong disappeared and was unavailable for trial. His deposition testimony was read to the jury. He offered his testimony in exchange for a State's recommendation to an Idaho prosecutor that he be allowed to serve the remainder of his jail time and probation for an Idaho charge for grand theft with deception in Washington.
Sivo contended at trial that he acted in defense of Smith and used justifiable force in light of his reasonable fear that Smith faced great personal injury from Bass. He offered evidence that Bass was a fairly strong person compared to others at the party and had a reputation for violence. He testified that he had heard that Bass killed a man, stabbed another man in the throat, had recently beaten someone up in a bar, had raped a woman, and was physically abusive to his ex-wife. He also said he believed that Bass carried a gun in his truck and a knife on his hip that he could quickly remove. He claims he only patted Bass' pants to feel for his truck keys. He offered testimony of two other witnesses who corroborated his story.
A jury found Sivo guilty of first-degree felony murder predicated on first-degree robbery. He appeals the conviction.
ANALYSIS I. Ineffective assistance of counsel
A defendant is denied his right to effective assistance of counsel when his attorney's conduct `(1) falls below a minimum objective standard of reasonable attorney conduct, and (2) there is a probability that the outcome would be different but for the attorney's conduct.' Reasonable attorney conduct includes a duty to investigate the facts and the relevant law.
State v. Benn, 120 Wn.2d 631, 663, 845 P.2d 289 (1993) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 So. Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied, 510 U.S. 944 (1993).
State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302, review denied, 90 Wn.2d 1006 (1978).
Sivo first claims his counsel was ineffective because he proposed an incorrect `act on appearances instruction' and failed to object to the State's erroneous instruction number 18. Both instructions used the term `great bodily harm' rather than the correct standard for self-defense instructions, which is `great personal injury' under both the Washington Pattern Jury Instructions-Criminal (WPIC) and State v. Walden. In this case, Sivo argues, the distinction between the two terms is particularly significant because Sivo used deadly force against Bass who ultimately turned out to be unarmed. We agree.
Instruction 17 states:
A person is entitled to act on appearances in defending another if that person believed in good faith and on reasonable grounds that another is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for a homicide to be justifiable.
Instruction 18 states:
One has the right to use force only to the extent of what appears to be the apparent imminent danger at the time. However, when there is no reasonable ground for the person acting in the lawful defense of another to believe that the other person being attacked or apparently under attack, is in imminent danger of death or great bodily harm, and it appears to him that only an ordinary battery is all that is intended, he has no right to repel a threatened assault by the use of a deadly weapon in a deadly manner.
131 Wn.2d 469, 475, 932 P.2d 1237 (1997). The justifiable homicide instruction 15, which provided the basis for Sivo's defense, correctly stated the law and used the `great personal injury' language.
First, the jury instructions in this case were clearly incorrect, and a reasonable attorney would have objected to them. In Walden, the Washington Supreme Court addressed whether self-defense instructions that excluded as a matter of law all ordinary batteries from the definition of `great personal injury' were instructional error in a case where the defendant used deadly force in self-defense against an unarmed assailant. The court held that it was reversible error because the instruction prohibited the jury from considering the defendant's subjective impressions of all the facts and circumstances, such as whether the defendant reasonably believed the battery at issue would result in great personal injury based on the size disparity between that batterer and the person being assaulted. This court applied the Walden holding in State v. Freeburg, a case that is similar to this one because it involved self-defense instructions that were inconsistent and misstated the law. There, the court gave four standard instructions: justifiable homicide, act on appearances, the definition of great bodily harm, and the definition of great personal injury. As in this case, the justifiable homicide instruction included the `great personal injury' standard while the act on appearances instruction included the `great bodily harm' standard. Citing Walden, we held that the act on appearances instruction should also use the `great personal injury' language. We said that using the correct language is particularly important in cases where a person uses deadly force against an unarmed assailant because the `great bodily harm' language `could cause a jury to reject self-defense without considering the defendant's right to act on appearances.' We noted that the Jury Instructions Committee had not yet corrected the standard instructions as dictated by Walden, so `it is imperative that trial courts make the correction to the standard instructions that the Committee has not yet made.' We held that `in future justifiable homicide cases, courts should follow the advice set forth in the comment to WPIC 2.04.01 and replace the phrase `great bodily harm' with the phrase `great personal injury' in the act on appearances instruction.' We concluded in that case that failing to use the correct term was harmless because the threat of injury satisfied both definitions. But we emphasized that failing to use the correct term in a case where the defendant or the person he was defending is faced with the threat of injury that does not satisfy both definitions is likely not harmless error.
Id. at 477.
105 Wn. App. 492, 20 P.3d 984 (2001).
Id. at 505.
Id. at 507.
Id. (emphasis added).
The comment states:
In the past, cases used the phrases `great personal injury' and `great bodily harm' interchangeably. The committee recommends that the phrase `great bodily harm' no longer be used with the justifiable homicide statute in view of the first degree assault statute. Under RCW 9A.36.011, the intent to inflict great bodily harm is an element of first degree assault and a definition of `great bodily harm' is set forth in RCW 9A.04.110(4)(c) for use specifically in those cases.
(Emphasis added.)
Freeburg, 105 Wn. App. at 507 (footnote omitted).
In Freeburg, the threat imposed was a gunshot at close range. Id. at 505. Because this obviously satisfies the definition of great personal injury and great bodily injury, the error was harmless. But we noted that in State v. Corn, 95 Wn. App. 41, 975 P.2d 520 (1999), the assailant was unarmed and the threat imposed was physical assault. In that case, the error was not harmless because the erroneous `great bodily harm' language in the instruction "left the impression that the evidence was insufficient to establish self-defense in that [the defendant] was not faced with this type of injury." Freeburg, 105 Wn. App. at 507 (quoting Corn, 95 Wn. App. at 55).
This line of cases makes clear that the term `great personal injury' should be used in self-defense instructions, including the act on appearances instruction. A reasonable counsel who properly investigated the law in this area would not have proposed and would have objected to any self-defense instructions that included the `great bodily harm' language, particularly where the victim was unarmed and the correct language was crucial to the case. We reject the State's argument that because the standard WPIC instructions do not make the correct instruction abundantly clear, the error does not constitute ineffective assistance of counsel. While we have held that it is not ineffective assistance of counsel to propose an instruction based on an unquestioned WPIC, the situation here is quite different. The Supreme Court issued Walden on March 13, 1997, and this court issued Freeburg on March 26, 2001. Sivo's counsel proposed the defective instruction and failed to object to the State's defective instructions more than one year after Freeburg and four years after Walden. Second, the error may have changed the outcome of the case. Sivo testified that based on his knowledge of Bass' reputation and violent history, he believed Bass was either reaching for a weapon or reaching back to punch Smith. Because it turned out that Bass was unarmed, a jury instructed on the wrong injury standard could have concluded that because Bass was going to attack Smith with only his fists, there was no threat of `great bodily injury.' A properly instructed jury may have concluded that Sivo reasonably believed that Bass, because of his superior size, age, boxing training, and reputation for violence, could have caused Smith a temporary but substantial impairment. If permitted to consider the correct standard, it may have concluded that the threat of injury justified Sivo's actions. The State argues that because a person charged with felony murder is not entitled to claim self-defense/defense of others, Sivo cannot prevail on his ineffective assistance of counsel claim. But both parties tried this case as if self-defense were a valid defense to the felony murder charge. The jury was instructed in relevant part as follows:
Freeburg, 105 Wn. App. at 507.
State v. Gallagher, 112 Wn. App. 601, 51 P.3d 100 (2002) (counsel cannot be said to have rendered deficient representation by requesting a WPIC instruction before the Supreme Court stated it was defective), review denied, 148 Wn.2d 1023 (2003).
The prosecutor emphasized in his argument that Bass was unarmed.
Although great bodily harm is `a probability of death, or . . . significant serious permanent disfigurement, or . . . a significant permanent loss or impairment of the function of any bodily part or organ,' the court did not define that term for the jury. RCW 9A.04.110(4)(c). It did define `substantial bodily harm,' as `bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or that causes a fracture of any bodily part.' A jury could have correctly deduced that `great bodily harm' must involve some injury or disfigurement greater than this standard.
Compare Corn, supra note 17. See also Walden, 131 Wn.2d at 478 (stating "[w]hen instructions are inconsistent, it is the duty of the reviewing court to determine whether `the jury was misled as to its function and responsibilities under the law' by that inconsistency. . . . [W]here such an inconsistency is the result of a clear misstatement of the law, the misstatement must be presumed to have misled the jury in a manner prejudicial to the defendant") (second alteration in original) (quoting State v. Wanrow, 88 Wn.2d 221, 239, 559 P.2d 548 (1977)).
The purpose of the felony murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for any murders they commit in the course and in furtherance of the felony. When a person willingly or intentionally employs a dangerous means to accomplish his or her criminal objective, the conduct enhances the risk of death to others, and the decision to use force and risk even an unintended death is the reason for the harsh result of the felony murder statute. Because one who murders a victim in the course of his criminal activity is strictly liable, he is not entitled to self-defense/defense of others instructions. See State v. Dennison, 115 Wn.2d 609, 616, 801 P.2d 193 (1990).
Instruction 9:
A person commits the crime of Murder in the First Degree when he commits Robbery in the First Degree and in the course of or furtherance of such crime he causes the death of a person other than one of the participants unless the killing is justifiable.
(Emphasis added.)
Instruction 10:
In order to convict the defendant of the crime of Murder in the First Degree the State must prove the following elements beyond a reasonable doubt:
a) That on or about the 2nd day of August, 2000, Melvin Bass was killed;
b) That the Defendant was committing the crime of Robbery in the First Degree;
c) That the defendant caused the death of Melvin Bass in the course of or in furtherance of such crime;
d) That Melvin Bass was not a participant in Robbery in the First Degree; and
e) That the acts occurred in the State of Washington.
(Emphasis added.)
Instruction 15:
[i]t is a defense for a charge of Murder in the First Degree and Murder in the Second Degree that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the lawful defense of any person in the slayer's presence or company when:
(1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury;
(2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
(3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of the incident.
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
(Emphasis added.)
The court instructed the jury that even if it concluded Sivo was guilty of felony murder, it could conclude that the murder was justifiable under the circumstances articulated in instruction 15. The State did not cross-appeal the court's instructions, so the instructions are the law of the case. Based on the instructions given, the outcome in this case may have been different if challenged instructions 17 and 18 had used the correct `great personal injury' standard. Accordingly, we conclude Sivo was denied effective assistance of counsel and remand for a new trial. We reach the remaining issues in an effort to guide the trial court on retrial.
See State v. Bolar, 118 Wn. App. 490, 509, 78 P.3d 1012 (2003) (where the court instructed the jury it could consider self-defense as a defense to felony murder and the State failed to cross-appeal, the State cannot challenge the instruction).
State v. Hickman, 135 Wn.2d 97, 101 n. 2, 954 P.2d 900 (1998) (the law of the case is an established doctrine and "whether the instruction in question was rightfully or wrongfully given, it was binding and conclusive upon the jury, and constitutes upon this hearing the law of the case. . . ." (quoting Pepperall v. City Park Transit Co., 15 Wn. 176, 180, 45 P. 743, 46 P. 407 (1896)).
We reject Sivo's other arguments supporting his ineffective assistance of counsel claim because even if they constitute error, he failed to show how they affected the outcome of the case.
II. `No duty to retreat' jury instruction
In Washington, a person has no duty to retreat when he is assaulted in any place where he has the right to be. A person is entitled to a `no duty to retreat' jury instruction when a jury may conclude from the evidence presented that flight is a reasonably effective alternative to using force in self-defense. When neither party argues that the defendant could have avoided the killing if he retreated, it is not an error when the trial court refuses to allow a `no duty to retreat' instruction.
State v. Allery, 101 Wn.2d 591, 598, 692 P.2d 312 (1984).
State v. Williams, 81 Wn. App. 738, 744, 916 P.2d 445 (1996).
State v. Studd, 137 Wn.2d 533, 549-550, 973 P.2d 1049 (1999).
In this case, Sivo proposed the following instruction:
It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he or she is being attacked or another person is being attacked, to stand his ground and defend against such an attack by the use of lawful force. The law does not impose a duty to retreat.
He argues that the trial court erred by refusing to allow the instruction because the jury in this case may have concluded that Sivo acted reasonably, except that he did not assist Smith in leaving the scene of the altercation. We disagree because neither party argued that flight was a reasonable alternative to the murder. Sivo based his defense on the theory that he had little time to think before picking up the bat to protect Smith. And although he mentioned at trial that he had no duty to leave the scene, he did not suggest that leaving was a reasonable alternative to hitting Bass.
Nor are we persuaded by Sivo's argument that the prosecutor suggested in closing arguments that Sivo or Smith should have fled the scene. In closing, the prosecutor argued:
So what we have here is an argument which may or may not develop into a fist fight that night. He didn't know that. So when we are looking at what the defendant knows, we know there was another incident that night with Dennis Smith, and Melvin Bass punched Dennis Smith. Dennis Smith left. Melvin Bass didn't pursue him, strangle him, beat his head with a baseball bat, didn't shoot him or strangle him. Didn't do any of those things. Dennis Smith went away.
And it was a fist fight, . . . deadly force is not warranted. He didn't use a deadly weapon. . . .
Taken in context, the prosecutor's argument did not assert that because Dennis Smith walked away earlier in the evening, Sivo or Smith should have done that too. Rather, he was commenting on the altercation between Bass and Dennis earlier in the evening to suggest that because they only engaged in a fist fight, Sivo should have expected only a similar fist fight to occur between Smith and Bass. Refusing to give the instruction was not an error.
III. Excusable homicide instruction
The defense of excusable homicide is available "when [the homicide is] committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent." A party is entitled to an instruction on his theory of the case if there is evidence to support it. When a trial court refuses to give an instruction based on a lack of supporting facts, an appellate court views the evidence and inferences in the light most favorable to the defense. Sivo argues that there is substantial evidence in the record that he hit Bass only to defend Smith and he intended merely to knock Bass out, not kill him. We agree. Sivo contended at trial that he only meant to knock out Bass and his resulting death was an accident. As noted above, if the jury had not been improperly instructed on defense of others, it would have been informed that the defense negates the mens rea of the crime and makes the act lawful. Accordingly, the basis for the trial court's decision that Sivo did not commit the act `without criminal negligence' or `without any unlawful intent' is not a valid basis upon which to refuse the instruction when Sivo was claiming self-defense and arguing that killing Bass was an accident. The jury, if properly instructed on self-defense, could have concluded that Sivo acted in defense of Smith, which negated the mental state as articulated in the excusable homicide instruction. It would have had to determine whether it believed Sivo killed Bass by accidentally using too much force. In addition, contrary to the State's argument, this case is analogous to Reese v. City of Seattle. In that case, a police officer intentionally shot at a fleeing felon's tires, but accidentally killed the felon instead. This court concluded that even though the officer intentionally used deadly force, because the result was unintended and accidental, the court properly instructed the jury on excusable homicide. Like the officer in Reese, Sivo intended to hit Bass, but claimed he killed him only by accident when he used too much force. The court in this case should have given an excusable homicide instruction. We recognize that because a defendant is not entitled to assert self-defense for felony murder, Sivo would not have the benefit of self-defense instructions, including this justifiable homicide instruction, at retrial on the same charges. But the State cannot now prosecute Sivo for second degree murder predicated on assault in light of In re Personal Restraint of Andress, which held that assault cannot serve as predicate felony for second degree felony murder. If the State charges Sivo with second degree murder, he would be entitled to this instruction. We also note there is scant evidence in the record supporting the crime of robbery as the predicate for first degree felony murder. Thus, the State may decide to amend that charge on retrial, making this instruction relevant.
State v. Bell, 60 Wn. App. 561, 568, 805 P.2d 815 (1991) (quoting RCW 9A.16.030), review denied, 116 Wn.2d 1030 (1991).
State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997).
State v. Cole, 74 Wn. App. 571, 578-80, 874 P.2d 878, review denied, 125 Wn.2d 1012 (1994), overruled on other grounds, 93 Wn. App. 340, 968 P.2d 26 (1998), review denied, 138 Wn.2d 1002 (1999).
Sivo proposed the following instruction:
It is a defense to a charge of murder [in the first] degree and or murder [in the second] degree that the homicide was excusable as defined in this instruction.
Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent.
The State has the burden of proving the absence of excuse beyond a reasonable doubt. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
81 Wn.2d 374, 384, 503 P.2d 64 (1972), cert. denied, 414 U.S. 832 (1973).
147 Wn.2d 602, 56 P.3d 981 (2002).
Sivo did not assert that there was insufficient evidence supporting the robbery predicate to the first degree felony murder conviction. Had Sivo made that argument, the evidence supporting that conviction may not have survived the challenge. It appears from the record that the jury convicted Sivo based on his taking Bass' keys from his pocket even though he only took the key to transport Bass away from the scene.
IV. Excluding testimony of Sivo's former attorney
Sivo argues that he was denied a fair trial when the court excluded testimony from his former attorney, Douglas Hyldahl, which was offered to contradict the testimony of one of the State's key witnesses, William DeLong. DeLong was a jailhouse informant who testified by deposition that Sivo discussed the crime with him in prison and on the prison phone with family members. DeLong stated that Sivo told him and others that he had planned to kill Bass prior to the incident with Smith, he coordinated a fictitious defense from jail, and he was happy Bass was dead. To refute this evidence, Sivo wanted to call his former attorney, who had withdrawn because of a conflict of interest, to testify that Sivo refused to talk about the case over the phone and consistently refused to discuss the crime unless they were in private. The trial court concluded the testimony was not relevant under ER 401, and even if it was, it was something to which Sivo could testify. This was an error.
The Sixth Amendment to the United States Constitution and article 1, section 21 of the Washington State Constitution grant criminal defendants two separate rights: `(1) the right to present testimony in one's defense, and (2) the right to confront and cross-examine adverse witnesses.' `[E]vidence relevant to the defense of an accused will seldom be excluded, even in the face of a compelling state interest.' Under ER 401, relevant evidence is `evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' A trial court's evidentiary rulings are reviewed for an abuse of discretion. A trial court abuses its discretion if it bases its decision on untenable grounds or for untenable reasons.
State v. Hudlow, 99 Wn.2d 1, 14, 659 P.2d 514 (1983).
State v. Reed, 101 Wn. App. 704, 715, 6 P.3d 43 (2000).
State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998).
Hyldahl's testimony is relevant because it contradicted DeLong's assertion that Sivo discussed the case openly with his cellmates and on the telephone with family and friends. If it had been admitted, the evidence would have undermined DeLong's testimony and his credibility, which the prosecutor argued was `the key to the case.' It called into question whether Sivo admitted that he actually planned the murder, concocted a defense, and felt no remorse for killing Bass. Because the evidence went directly to Sivo's state of mind, it cannot be considered collateral. In addition, there appears to be no reason to keep this evidence from the jury. The court allowed Sivo to testify that he did not openly discuss his case with his cellmates or on the telephone. But because Sivo was facing a first-degree murder charge and had an obvious motive to testify that he did not discuss his case with anyone, the trial court should not have deprived him of the opportunity to present a disinterested witness whose testimony was considerably more credible.
Reversed and remanded for a new trial.
APPELWICK and COX, JJ., concur.