Summary
In Lindholm I, the trial court and this court reviewed Cook and Grant, which both held that previous acts of domestic violence under ER404(b), which generally prohibits evidence of other crimes, wrongs, or acts to establish action in conformance with a bad character, were nonetheless admissible.
Summary of this case from State v. LindholmOpinion
No. 34678-8-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03828-6, John R. Hickman, J., entered April 14, 2006.
Affirmed by unpublished opinion per Houghton, C. J., concurred in by Van Deren and Penoyar, JJ.
The State appeals from an order granting Chris Lindholm a new trial based on evidentiary error. Because State v. Cook, 131 Wn. App. 845, 129 P.3d 834 (2006) controls, we affirm.
FACTS
Lindholm and his wife, Jill, were married for over 27 years. Around 1999 or 2000, Lindholm was diagnosed with an illness. He could not work, the family lost their home, and the marriage became strained. They briefly moved to Oregon but stayed only a week. When they returned, they moved into separate residences and had no contact for about three months.
For clarity, we refer to Jill Lindholm as Jill, intending no disrespect.
On August 3, 2005, Jill contacted Lindholm to help her fix the brakes in her van. They went to dinner together, and Jill told Lindholm that she was seeing somebody else. Lindholm became upset and left the restaurant, sitting in the car. They then drove Jill's van to Lindholm's house and she stayed the night.
The next day, Lindholm drove Jill back to her apartment. While she showered, he listened to her answering machine and heard a message from the man she was dating. Jill confessed to Lindholm that the man she was seeing was his friend, who had been the best man in their wedding.
Jill later gave conflicting versions of what happened next. On the day of the incident, she told police officers that she and Lindholm had argued at her home and that Lindholm had held a gun to his head, threatening to shoot them both. Jill ran out of her apartment and Lindholm chased her, demanding that she come back. He forced her to drive him to Puyallup in his car while he kept the gun in his lap, pointed at her. He told her if she stopped and got out of the car, he would shoot her.
When they stopped for fuel at a gas station, Jill went inside the store with Lindholm's permission. She told the clerk that her husband had a gun and was threatening to kill her. After paying for the gas and exiting, she returned to the store and asked the clerk to call the police because her husband was holding her at gunpoint.
Jill signed a statement under penalty of perjury that set forth this version of events and additionally stated, "I feel very confident to tell you that I truly believe my husband Chris Lindholm would have killed me or assaulted me on August 4th, 2005." III Report of Proceedings at 110, 118.
But when Jill spoke with a defense investigator about three months after the incident, she denied that Lindholm threatened to kill her, claiming instead that he only threatened suicide. She admitted that he threatened to kill her at one point during the drive, but she denied that he held her against her will or pointed a gun at her. She claimed that when they got to the gas station, she asked the clerk to call the police because Lindholm was smoking a cigarette at the pump and she was afraid he was going to kill himself and blow up the gas station.
The cashier called the police and the store manager locked Jill in the office. Lindholm entered the store looking for her and headed into the back, saying, "I want my wife." III Report of Proceedings (RP) at 168. He was yelling and using profanities. When the police arrived, Lindholm left the store.
Lindholm walked across the parking lot, passing the police officers. He did not respond to their directions to stop and, instead, ran toward
a nearby apartment complex. Police officers pursued him on foot and saw him make some furtive movements, as though to pull something out of his right pocket. When an officer confronted him, Lindholm ran straight at the officer. He held what appeared to be a black firearm in his hand. The officer determined that the object was a black hat and did not fire at Lindholm.
Lindholm ran at the officer as if to tackle him and the officer struck him in the head with his gun. Lindholm continued to lunge toward the officer, trying to grab him. The officer struck Lindholm two more times in the head and managed to subdue him to place him under arrest. When Lindholm was handcuffed, the officer searched him and found a glass pipe for smoking methamphetamine in his pocket. Police later recovered a gun from some brush near the apartment complex.
The State charged Lindholm with first degree kidnapping, second degree assault, and felony harassment against Jill. All three charges included domestic violence and firearm enhancements. The State also charged him with third degree assault for attacking the police officer and possession of drug paraphernalia.
A jury heard the case. At trial, Jill denied that her sworn statement was true and explained that she was under the influence of drugs and alcohol when she spoke to the police. She claimed that she gave the written statement because she was mad at Lindholm and did not realize what the consequences would be. She denied changing her story to protect Lindholm and claimed that her statement to the defense investigator was a more accurate version of events.
As a result of Jill's inconsistent statements, the State moved to admit evidence of Lindholm's prior acts of domestic violence against her. The evidence concerned four incidents in April 2005, when Lindholm physically assaulted her. The trial court granted the motion, finding that under State v. Grant, 83 Wn. App. 98, 920 P.2d. 609 (1996), the prior incidents were admissible to assess Jill's credibility. Lindstrom made a continuing objection to the evidence and proffered a limiting instruction, which informed the jury that it could consider the evidence only for the limited purpose of assessing Jill's credibility. The State did not object to the instruction and the trial court gave it.
The jury convicted Lindholm on all counts and enhancements. About one month after the trial, we decided Cook, holding that prior acts of domestic violence may not be considered for the general purpose of assessing the witness's credibility. 131 Wn. App. at 851. Such evidence can be admitted only if the jury is instructed to consider the evidence to evaluate the victim's state of mind at the time of the inconsistent act. Cook, 131 Wn. App. at 851.
Lindholm moved for a new trial. The trial court granted the motion as to the first three charges, finding that under Cook it erred in admitting the prior bad acts for the sole purpose of evaluating Jill's
credibility. It also found that Lindholm did not invite the error in proposing the limiting instruction because it reflected the trial court's oral instruction and because the initial error was in admitting the evidence for an improper purpose. The State appeals.
ANALYSIS
The State argues that the trial court erred in finding that Cook barred the admission of Lindholm's prior bad acts for the purpose of assessing Jill's credibility. Instead, the State contends that Cook permits the evidence to assess the victim's state of mind and, therefore, the admission of the evidence was not error.
We ordinarily review an order granting or denying a new trial for an abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997). But when the order is based on a determination of law, the trial court's discretion is not implicated and we review the legal issue de novo. See State v. Higgins, 75 Wn.2d 110, 115, 449 P.2d 393 (1969). Here, the trial court's order resulted from its interpretation of Cook, an issue of law that we review de novo.
Under ER 404(b), a trial court may not admit evidence of other crimes, wrongs, or acts to establish action in conformance with a bad character. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995); Grant, 83 Wn. App. at 105. But evidence of prior bad acts can be admitted for other purposes, "'such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'" Powell, 126 Wn.2d at 258 (quoting ER 404(b)). This list is not exhaustive. Grant, 83 Wn. App. at 105.
When a trial court admits evidence of prior bad acts, it must identify the purpose for admitting it and "determine whether the evidence is relevant and necessary to prove an essential ingredient of the crime charged." Powell, 126 Wn.2d at 258. The evidence is admissible if its probative value outweighs its prejudicial effect. Grant, 83 Wn. App. at 105. When admitting ER 404(b) evidence, the trial court should give a cautionary instruction limiting how the jury may use the evidence. State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982). The trial court does not, however, have a duty to give a limiting instruction sua sponte. State v. Noyes, 69 Wn.2d 441, 446-47, 418 P.2d 471 (1966).
In Grant, Division One held that evidence of the defendant's history of domestic violence against the victim was admissible to assess the victim's credibility. 83 Wn. App. at 105-06. The victim, Grant's wife, had obtained a restraining order against Grant but subsequently had contact with him at a friend's house. Grant, 83 Wn. App. at 101. Grant became abusive toward his wife and eventually tried to run away with their child. Grant, 83 Wn. App. at 101-02. When the police responded, Grant told his wife not to identify him or she would regret it. Grant, 83 Wn. App. at 102. She did identify him, but only after the police took him away. Grant, 83 Wn. App. at 102.
The Grant court held that the history of domestic violence between the Grants was relevant to explain the victim's inconsistent actions in permitting the contact with Grant despite the no-contact order and in minimizing Grant's violence afterward. Grant, 83 Wn. App. at 107-08. Noting that "victims of domestic violence often attempt to placate their abusers in an effort to avoid repeated violence, and often minimize the degree of violence when discussing it with others," the Grant court concluded that the jury was entitled to assess the victim's credibility in light of her relationship with Grant and the effect that relationship would have on her. 83 Wn. App. at 107-08.
Our recent holding in Cook differs from the holding in Grant. In Cook, the victim initially reported to police that the defendant had kicked her and broken her finger. 131 Wn. App. at 848.
But the victim recanted her statement at trial, testifying that she had broken her finger when she slipped. Cook, 131 Wn. App. at 848. The trial court allowed the State to present evidence of previous incidents of domestic violence and instructed the jury that it could consider the incidents only for the purpose of assessing the victim's credibility. Cook, 131 Wn. App. at 848-49.
On appeal, we agreed that evidence of prior acts of domestic violence may be admissible under ER 404(b), but we disagreed that they could be admitted "for the generalized purpose of assessing the victim's credibility." Cook, 131 Wn. App. at 851. Instead, we held that evidence of prior abuse is admissible "to illuminate the victim's state of mind at the time of the inconsistent act." Cook, 131 Wn. App. at 851. This distinction is necessary because allowing evidence of prior abuse to assess the victim's credibility invites the jury to consider it as proof of the defendant's propensity to commit domestic violence.
Cook, 131 Wn. App. at 853. By contrast, admitting the evidence to consider the victim's state of mind while testifying inconsistently appropriately focuses the jury's inquiry on the victim's potential bias, motive for fabrication, and fear of retaliation. Cook, 131 Wn. App. at 853-54.
The State interprets Cook as establishing an instructional error rather than an error in the admission of the evidence. It argues: "[T]he issue in this case is not whether the evidence was improperly admitted, which it was not, but whether the jury was properly instructed regarding how it could consider the evidence." Appellant's Br. at 15. We disagree.
Although Cook emphasized the improper effect the limiting instruction had on the jury, the case clearly turned on the purpose for which the evidence was admitted. 131 Wn. App. at 851-52 (discussing purposes for which prior abuse may be admitted). It is error for a trial court to admit ER 404(b) evidence for an improper purpose. See Powell, 126 Wn.2d at 264. In Powell, our Supreme Court held that the trial court erred in admitting ER 404(b) evidence to prove intent and opportunity because intent was not disputed and because the prior acts did not tend to show opportunity. 126 Wn.2d at 262-63. But because the trial court cited other permissible bases for admitting the evidence, the error did not require reversal. Powell, 126 Wn.2d at 264.
In this case, however, the trial court cited only one purpose for admitting the evidence, to assess the victim's credibility. Under Cook, that purpose is improper because a jury limiting its consideration to that purpose may regard the evidence as tending to show the defendant's propensity to commit domestic violence. The error is therefore evidentiary, not instructional.
Because the trial court erred in admitting the evidence for an improper purpose, Lindholm did not invite the error by proposing a limiting instruction that memorialized the trial court's ruling. The State correctly notes that under the invited error doctrine, a defendant who proposes an erroneous instruction may not complain about it on appeal. State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999). But in this case, the erroneous instruction simply carried out the improper evidentiary ruling. We decline to apply the doctrine here where the primary error was in admitting the evidence for an improper purpose.
The trial court correctly interpreted Cook when it found that the prior acts of domestic violence were not admissible under ER 404(b) to assess the witness's credibility. We further agree that because Jill's credibility was a central issue in the case, the error was not harmless.
The trial court did not abuse its discretion in granting Lindholm's motion for a new trial.
The State additionally urges us to reconsider our opinion in Cook. Because the State's argument does not persuade us, we decline to do so.
The State argues that because evidence of a defendant's prior crimes is admissible to assess credibility under ER 609(a), the same rule should apply to ER 404(b) evidence. But ER 609(a) evidence is only admissible to impeach a witness's credibility, whereas ER 404(b) evidence is admissible for a variety of purposes. Evidence of prior convictions under ER 609(a) is presumed inadmissible unless the proffering party affirmatively establishes (1) the prior conviction is probative of the defendant's truthfulness, and (2) the probative value outweighs the prejudice. State v. Hardy, 133 Wn.2d 701, 711-12, 946 P.2d 1175 (1997). Few offenses that do not involve dishonesty or false statements are probative of truthfulness. Hardy, 133 Wn.2d at 709. Furthermore, the defendant can keep out the evidence of his prior convictions if he refuses to testify. See Hardy, 133 Wn.2d at 711.
By contrast, evidence of a history of domestic violence does not tend to prove whether the victim is telling the truth unless the jury engages in the propensity analysis we discussed in Cook. Acts of prior abuse may tend to show other relevant factors, such as the victim's motives to fabricate or minimize, to protect the abuser, or to fail to report domestic violence. Our analysis in Cook demonstrates that evidence of past domestic violence has only minimal probative value in ascertaining the witness's truthfulness. Because prior abuse evidence is relevant for different purposes from ER 609(a) evidence, it is subject to different limitations.
The State has failed to show that the trial court abused its discretion in granting Lindholm's motion for a new trial because the trial court correctly interpreted Cook to prohibit the admission of ER 404(b) evidence for the purpose of gauging the witness's credibility. Further, we correctly decided Cook. The trial court did not err.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: Van Deren, J., Penoyar, J.