Opinion
No. 36464-6-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Skamania County, No. 07-1-00042-7, E. Thompson Reynolds, J., entered June 14, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
The State charged Troy Tate with third degree assault after his wife, Robin, authorized emergency room medical personnel to contact the Skamania County Sheriff's Office regarding the alleged incident. A jury found Tate guilty as charged and returned a special verdict finding that Robin and Tate were members of the same family or household. Tate now appeals, arguing that (1) the trial court erred by admitting Robin's emergency room medical record; (2) he was denied effective assistance of counsel; and (3) the trial court improperly answered a question the jury submitted during deliberations. Tate's arguments are unpersuasive and we affirm.
We refer to Robin Tate as "Robin" throughout this opinion for clarity and mean no disrespect in doing so.
FACTS
On February 4, 2007, Robin and Tate drank beer and watched the Super Bowl at Tate's mother's home in Carson, Washington. After the game ended, the couple, whose marriage had been "[r]ocky," began to argue and Robin told Tate that she wanted a divorce. Report of Proceedings (RP) at 30. Robin and Tate disagree as to what followed.
Robin testified that after she told Tate she wanted a divorce, she went to a travel trailer located outside the residence to pack her belongings. Tate followed her to the trailer, where he screamed at her, grabbed her by the hair, and threw her to the floor. Tate then jumped on Robin "with his knees in [her chest]" and started slapping her in the face. RP at 34. When Robin put her hands up to stop him from hitting her, Tate "tried to bite [her] finger off." RP at 34. Robin claims that although she kept screaming at him to stop, Tate would not let her leave and he punched her in the back of the head. Finally, Robin convinced Tate to stop and convinced him it was time for them to go to bed. Robin went to sleep in the couple's bed, fully clothed and under a separate blanket.
Tate testified that he and Robin began arguing when he confronted Robin about her substance abuse problems. When Tate turned to leave the trailer, he contends, Robin jumped on him from behind and pulled him backwards, causing both of them to tumble onto a nearby table. As they fell, the back of his head hit Robin's face. Then, when Tate swung around to get Robin off his back, she fell down on her left side. Tate claims that they sat down and "drank some more," after which Robin proceeded to yell at him for the next couple of hours. RP at 126. He insists that it was he who finally suggested that they go to sleep.
The next morning after Tate left for work, Robin walked to a friend's house and requested a ride to the Skyline Hospital emergency room (ER) in White Salmon, Washington. At the ER, an emotionally distraught Robin told medical personnel that she was in a lot of pain. Robin told Nurse Donna Clack, who performed an initial assessment of Robin's condition, that her husband had assaulted her. When Clack asked Robin whether she wanted to report the incident to authorities, Robin said yes. Clack called the Skamania County Sheriff's Office, who dispatched Deputy Jay Johnston and two domestic violence counselors, including Lisa Butcher, to the hospital. Clack then took photographs of Robin's injuries. Dr. Russell Smith, an ER physician, examined Robin and found tenderness in her right rib and upper chest area and bruising and swelling in her left knee, left upper arm, face, left upper eyelid, left side of her scalp, and her hand. Dr. Smith prescribed pain medication and directed Robin to revisit a doctor within a week.
When he "determine[d] that [he] believed an assault had occurred," Johnston contacted Tate. RP at 95. After Johnston read Tate his Miranda warnings, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Tate admitted that the couple had argued about Robin wanting a divorce, but he denied pushing, punching, or kicking Robin during the argument. Johnston later testified that Tate's demeanor changed when he asked him about the alleged assault; he "began trembling and not looking at [Johnston] anymore." RP at 109.
Robin subsequently visited her doctor at the Rock Creek Clinic. Robin's doctor prescribed anti-inflammatory medication, muscle relaxants, and pain medication through March 2007. Robin also attended physical therapy.
The State charged Tate with one count of third degree assault under RCW 9A.36.031. The information included an allegation that Tate had committed the assault against a family or household member under RCW 10.99.020. Before trial, defense counsel moved in limine to exclude Robin's testimony that Tate had abused her in the past. The trial court denied the motion, holding that the proposed testimony was relevant and admissible under ER 404(b) to explain why Robin stayed with Tate the night of the assault and did not report the incident until the following morning.
The State charged Tate with "causing bodily harm accompanied by substantial pain that extended for a period sufficient to cause considerable suffering to Robin Tate on February 4, 2007." Resp't's Br. at 7.
Under RCW 10.99.020(5)(c), "domestic violence" includes, but is not limited to, third degree assault when committed by one family or household member against another.
A jury trial began on June 11, 2007. Robin, Clack, Butcher, Johnston, Dr. Smith, and a Rock Creek Clinic office manager testified for the State. Tate testified on his own behalf. During Clack's testimony, the trial court admitted Robin's ER medical record into evidence (exhibit 3) as a business record, over defense counsel's objection that the exhibit was cumulative because Clack had already testified to its contents and that its admission would draw undue attention to its contents. In the medical record, Clack wrote:
RCW 5.45.020 provides "that [a] record of an act, condition or event, shall, [insofar] as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."
[A]t approximately 2100 last night [patient] reports she was assaulted by her [husband] (Troy Tate) who was drinking — "this happens fairly often and she would like to press charges this time."
Ex. 3. Later, Smith wrote, "I believe that she has a history of fractured ribs" and "[Robin] states that she has been assaulted numerous times by her husband . . . She also states that her husband has been in jail for two assaults involving her." Ex. 3.
During deliberations, the jury submitted a question to the trial court, asking:
Can we consider the defendants 2 prior arrests for domestic abuse as to his credibility as stated in the medical record? (, item 3) "She states that she has been assaulted numerous times by her husband." . . . "She also states that her husband has been in jail for two assaults involving her."
Clerk's Papers (CP) at 48. The trial court contacted both the prosecuting attorney and defense counsel after receiving the jury's question. Both parties met in chambers, discussed the jury's question, and agreed to the trial court's response:
No, you may not consider any alleged prior acts of the defendant. CP at 48; Agreed Report of Proceedings (ARP) at 2. The jury returned a guilty verdict and a special verdict finding that Robin and Tate were members of the same family or household. Tate now appeals.
ANALYSIS
Tate asks that we reverse his conviction and grant him a new trial. Tate's arguments do not warrant reversal.
I. Admission of Medical Record
Tate argues that the trial court erred by admitting exhibit 3 because it was cumulative, contained hearsay, and contained prejudicial material suggesting that he had a propensity to commit assault. The State responds that Robin's ER medical record was not cumulative and was admissible under both ER 803(a)(4) and ER 404(b). Furthermore, the State contends, Tate failed to preserve any hearsay or ER 404(b) objections for appellate review. We conclude that two related issues are before us. First, should the trial court have excluded exhibit 3 as cumulative? Second, was its admission as an exhibit, as distinguished from testimony regarding its contents, error as more prejudicial than probative? We hold that the trial court did not err by admitting exhibit 3 into evidence.
A. Standard of Review
We review the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). "A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds." State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)).
B. Cumulative Evidence
ER 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The trial court has considerable discretion in balancing the probative value of evidence against its potential prejudicial impact, and we will not reverse its decision to admit relevant evidence absent a manifest abuse of discretion. State v. Reay, 61 Wn. App. 141, 148, 810 P.2d 512 (1991) (citing State v. Hughes, 106 Wn.2d 176, 201-02, 721 P.2d 902 (1986)). Evidence causes unfair prejudice when it has an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one. State v. Cameron, 100 Wn.2d 520, 529, 674 P.2d 650 (1983) (quoting 10 J. Moore, Federal Practice, § 403.01[3], at IV-67 (1980)).
Tate argues that because both Clack and Smith testified regarding Robin's injuries, there was no need to admit this document into evidence. The State, on the other hand, contends that the exhibit not only described medical observations and exam results that were necessary to prove the third degree assault charge, but that it also contained some data that was not part of either Clack's or Smith's testimony. Both the record and Washington case law support the State's argument.
In Cameron, the Washington Supreme Court reversed a trial court's ruling admitting evidence on the basis that the evidence was cumulative and highly prejudicial. 100 Wn.2d at 521. Shortly after the State charged him with and arrested him for premeditated first degree murder, the defendant confessed to the murder. Cameron, 100 Wn.2d at 522. Before trial, the defendant moved in limine to exclude evidence of pubic hair State investigators found on the victim's body. Cameron, 100 Wn.2d at 527. During trial, he again objected to the trial court's admission of the hair and related testimony. Cameron, 100 Wn.2d at 527. A jury returned a guilty verdict, which the Court of Appeals affirmed. Cameron, 100 Wn.2d at 521.
On appeal to the Supreme Court, the State asserted that admission of the hair and related testimony was essential to the defendant's identification as the assailant and thus relevant under ER 402. Although the defendant conceded that the evidence was relevant, he argued it was cumulative and highly prejudicial. Cameron, 100 Wn.2d at 527-28. The defendant contended that since the State had two detailed confessions and evidence of his bloody foot and palm prints at the scene of the crime, admission of this evidence would raise an unsubstantiated inference of a sexual attack and could only inflame the jury's passions. Cameron, 100 Wn.2d at 528. The Supreme Court agreed, holding that the evidence was "needlessly cumulative of unchallenged relevant facts of an undenied killing," unfairly prejudicial, and therefore erroneously admitted into evidence. Cameron, 100 Wn.2d at 529.
Cameron is easily distinguishable from the present case. First, the information contained in exhibit 3 was not cumulative of unchallenged relevant facts. At trial, Robin, Clack, and Smith testified regarding Robin's injuries and the circumstances surrounding her ER admittance. However, Robin's ER medical record contained other information about which they did not testify. For example, the record contained more detailed information regarding Robin's head injuries, her estimate of the time the assault occurred (something she was not able to recall at trial), and her denial of previous drug abuse. These details, which were relevant to the alleged assault, were never discussed at trial; therefore, this information was not needlessly cumulative and was certainly not cumulative of unchallenged facts. Although Clack's and Smith's testimony mirrored and was perhaps expanded upon by some of the information contained in exhibit 3, Tate's claim that the trial court abused its discretion by admitting this document is unpersuasive. Tate has failed to demonstrate that this evidence's probative value was substantially outweighed by the danger of unfair prejudice. In light of the aforementioned witnesses' testimony and the State's evidence as a whole, it is unlikely that Tate could have met the burden of proving that the document itself had an undue tendency to suggest a decision on an improper basis.
At trial, Clack testified regarding Robin's visit to the ER, where she told medical personnel that Tate had assaulted her. Smith also testified regarding Robin's extensive injuries and Robin's assertion that Tate caused her injuries.
Furthermore, we note that even if Tate had properly objected under ER 404(b), the evidence would have likely been admissible under the Washington Supreme Court's recent decision in State v. Magers, 164 Wn.2d 174, 189 P.3d 126 (2008). In that case, the court held that 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. Magers, 164 Wn.2d at 184-85. The court adopted the rationale set forth in State v. Grant, 83 Wn. App. 98, 920 P.2d 609 (1996), in which Division One of this court held that evidence of the defendant's history of domestic violence was admissible in order to explain the victim's inconsistent statements and conduct. Here, Robin's decision to spend the night with Tate after he assaulted her was arguably conduct inconsistent with an assault.
II. Ineffective Assistance of Counsel
Tate next argues that he was denied effective assistance of counsel when his attorney failed to (1) state all of the bases upon which exhibit 3 was objectionable; (2) seek redaction of the prejudicial material from exhibit 3; and (3) seek a limiting instruction regarding propensity evidence. We disagree.
Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, Tate must show that (1) counsel's performance was deficient; and (2) that deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). If defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991) (citing State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978)).
Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Tate first contends that because defense counsel's objection to exhibit 3 was based solely on the fact that it was cumulative, the trial court was left to conclude that he did not otherwise object to this evidence. Because exhibit 3 was arguably admissible under RCW 5.45.020, ER 404(b), and ER 803(a)(4) — something defense counsel undoubtedly considered — we may easily characterize counsel's conduct as a legitimate trial strategy. Counsel may have also recognized that stating additional objections would have only highlighted the information Tate found objectionable. Tate's arguments that defense counsel should have asked that Robin's ER medical record be redacted and/or requested a limiting instruction fail on similar grounds. Tate has not met his burden of demonstrating that counsel's conduct was not a tactical decision to avoid actually emphasizing Tate's prior assaults and related incarcerations. The record reveals that counsel made several attempts to exclude evidence he found objectionable and in no way performed deficiently. Furthermore, in light of the strong evidence against him, Tate has not shown that there is a reasonable probability that the trial outcome would have differed had defense counsel performed differently.
III. Jury Question
Finally, Tate argues that the trial court committed reversible error when it answered the jury's question "in such a way that it permitted the jury to consider [his] prior arrests . . . for any purpose except to evaluate his credibility." Appellant's Br. at 13. Furthermore, Tate contends, the record does not reflect that the trial court consulted and gave him an opportunity to comment before it answered the jury's question. The State responds that the trial court's response to the jury's question was both procedurally and substantively proper. It also emphasizes that defense counsel did not object to the judge's response at trial; therefore, Tate may not raise it on appeal.
A. Procedure
CrR 6.15(f) governs jury questions submitted to the trial court during deliberations. The rule requires that the trial court notify parties of the content of such questions and provide them an opportunity to comment upon an appropriate response. CrR 6.15(f)(1). On March 17, 2008, the State moved to supplement the record under RAP 9.10. Our court's commissioner granted the State's motion on March 26, 2008. On April 28, 2008, the State filed an ARP. It states that the attorneys who participated in Tate's trial stipulated to the following:
Immediately after receiving the [jury] question, deputy prosecuting attorney Adam Kick and defense counsel Christopher Lanz were contacted and asked to meet with the judge to discuss the question. They then met with Judge Reynolds in chambers, where the contents of the note was discussed. Judge Reynolds then wrote the following response to the jury question. . . .
ARP at 1. Thus, it appears that the trial court contacted both parties and provided them an opportunity to comment in compliance with CrR 6.15(f)(1). At oral argument, Tate's counsel properly conceded this point.
B. Substance
Questions from the jury are not final determinations, and the jury's decision is contained exclusively in the verdict. State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988). Absent evidence to the contrary, we presume that the jury followed the trial court's instructions. State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d 1213 (1984). The trial court has discretion whether to give further instructions to a jury after it has begun deliberations. Ng, 110 Wn.2d at 42.
In this case, the jury asked whether it could consider Tate's two prior arrests for domestic abuse "as to his credibility as stated in the medical record." CP at 48. The trial court responded, "No, you may not consider any alleged prior acts of the defendant." CP at 48. Tate claims that the trial court's answer "merely instructed the jury it could not consider these alleged prior acts for the purpose they proposed; it did not instruct them that they could not consider this evidence for any purpose, such as . . . his propensity to commit this crime." Appellant's Br. at 10. Even if Tate had properly objected at trial, his argument is unpersuasive.
First, the trial court properly instructed the jury that it was not to consider any alleged prior acts of the defendant for the purpose of assessing his credibility. The trial court's answer was consistent with its previous ruling that Robin's testimony regarding such acts was admissible to explain why Robin stayed with Tate the night of the assault and did not report the assault until the following day; it informed the jury that it could not consider this information with respect to Tate's credibility. Second, the jury could have also interpreted the trial courts phrasing to preclude consideration of Tate's prior acts for any purpose other than to explain Robin's delay in reporting the incident or for any purpose at all. Tate seems to argue that the trial court was required to specify that the jury could not consider his prior acts in assessing his propensity to commit assault against Robin. This argument is simply untenable. The trial court properly and accurately answered the jury's question and had discretion as to whether to give further instructions regarding this issue.
We affirm.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.