State v. Otton

• Decision Date: 09 June 2016
• Docket Number: No. 91669–1,91669–1
• Citation: 185 Wash.2d 673,374 P.3d 1108
• Court: Washington Supreme Court
• Parties: State of Washington, Respondent, v. Nakia Lee Otton, Petitioner.

185 Wash.2d 673

374 P.3d 1108

State of Washington, Respondent

v.Nakia Lee Otton, Petitioner.

No. 91669–1

Supreme Court of Washington, EN BANC.

Filed: June 09, 2016

Argued: February 18, 2016

Jan Trasen, Attorney at Law, Washington Appellate Project, 1511 Third Avenue, Suite 701, Seattle, WA, 98101–3647, Counsel for Petitioner.

David Phelan, Cowlitz County Prosecuting Atty's Office, 1338 Commerce Ave. Ste. 305, Longview, WA, 98632–3726, Counsel for Respondent.

Gretchen Eileen Verhoef, Spokane County Prosecutors Office, 1100 W Mallon Ave., Spokane, WA, 99260–0270, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

YU

, J.

While ostensibly concerning the interpretation of an evidentiary rule, this is actually a case about stare decisis. Petitioner Nakia Lee Otton seeks reversal of his convictions for second degree assault and felony harassment. The victim testified at Otton's trial, and because her testimony was inconsistent with her prior sworn statement to police about the incident, the trial court admitted the victim's prior statement as substantive evidence. Otton acknowledges that the trial court's decision and the Court of Appeals opinion affirming that decision were proper in accordance with this court's longstanding precedent. He asks us to reject that precedent. We decline the invitation and affirm the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Otton and the victim had a romantic relationship and lived in the same household. The victim was disabled due to a history of multiple brain surgeries

and sometimes had difficulties with memory and speaking. Late one night in December 2012, Otton and the victim had a confrontation. After Otton left the house, the victim called 911. When the police arrived, the victim gave a written statement, signed under penalty of perjury, alleging that Otton held her on the bed and against the wall by her neck so that she could not breathe and told her he was going to kill her. The State charged Otton with second degree assault and felony harassment.

¶ 3 At trial, the victim testified that while she would not have intentionally lied to police, her allegations against Otton were false, and that she had called 911 because she was “angry” and “had a couple of drinks.” 2A Verbatim Report of Proceedings (VRP) (Aug. 7, 2013) at 132. At the State's request and over Otton's objection, the trial court admitted the victim's written statement as substantive evidence pursuant to ER 801(d)(1)(i), in accordance with State v. Smith , 97 Wash.2d 856, 651 P.2d 207 (1982)

, and State v. Binh Thach , 126 Wash.App. 297, 106 P.3d 782 (2005). Id. at 212. The jury convicted Otton as charged, and the Court of Appeals affirmed in an unpublished opinion. State v. Otton , noted at 187 Wash.App. 1001, 2015 WL 1731230, review granted , 184 Wash.2d 1017, 360 P.3d 819 (2015).

ISSUE

¶ 4 Should this court reject Smith 's interpretation of ER 801(d)(1)(i)?

ANALYSIS

A. Standard of review and principles of stare decisis

¶ 5 A decision to admit or exclude evidence is generally reviewed for abuse of discretion. State v. Griffin , 173 Wash.2d 467, 473, 268 P.3d 924 (2012)

. But in this case, Otton does not challenge the manner in which the trial court exercised its discretion; he challenges the way this court previously interpreted ER 801(d)(1)(i). “ ‘Interpretation of an evidentiary rule is a question of law, which we review de novo,’ ” id.

(quoting State v. Foxhoven , 161 Wash.2d 168, 174, 163 P.3d 786 (2007) ), but we have previously addressed the precise question Otton now raises. We must therefore be mindful of stare decisis.

¶ 6 “Stare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change.” In re Rights to Waters of Stranger Creek , 77 Wash.2d 649, 653, 466 P.2d 508 (1970)

. In order to effectuate the purposes of stare decisis, this court will reject its prior holdings only upon “a clear showing that an established rule is incorrect and harmful.” Id. There are also “ ‘relatively rare’ occasions when a court should eschew prior precedent in deference to intervening authority” where “the legal underpinnings of our precedent have changed or disappeared altogether.” W.G. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters , 180 Wash.2d 54, 66, 322 P.3d 1207 (2014) (internal quotation marks omitted) (quoting Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co. , 215 F.3d 136, 141 (1st Cir.2000) ).

¶ 7 When a party asks this court to reject its prior decision, it “is an invitation we do not take lightly.” State v. Barber , 170 Wash.2d 854, 863, 248 P.3d 494 (2011)

. The question is not whether we would make the same decision if the issue presented were a matter of first impression. Instead, the question is whether the prior decision is so problematic that it must be rejected, despite the many benefits of adhering to precedent—“ ‘promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.’ ” Keene v. Edie , 131 Wash.2d 822, 831, 935 P.2d 588 (1997) (quoting Payne v. Tennessee , 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)

). With these principles in mind, we turn to the precedent Otton asks us to reject—Smith , 97 Wash.2d 856, 651 P.2d 207.

B. The Smith decision and its application in this case

¶ 8 Smith was a case about the proper interpretation of ER 801(d)(1)(i), an evidentiary rule concerning the definition of “hearsay.” “Hearsay” is defined generally as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c)

. “Hearsay is not admissible except as provided by these [evidentiary] rules, by other court rules, or by statute.” ER 802. However, ER 801(d)(1) provides that an out-of-court statement is not hearsay if

[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (i) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

Because such a statement is not hearsay, it is admissible at trial as substantive evidence, that is, to prove the truth of matter asserted in the statement.¹

¶ 9 As noted, it is undisputed on appeal that the victim in this case testified at Otton's trial, that she was subject to cross-examination about her prior written statement, that the prior written statement was inconsistent with the victim's trial testimony, and that the prior written statement was given under oath and subject to the penalty of perjury. The only question is whether her police interview was an “other proceeding” within the meaning of ER 801(d)(1)(i).

¶ 10 When confronted with the same question in 1982, this court declined to issue a categorical ruling that a police interview is either always or never considered an “other proceeding.” Smith , 97 Wash.2d at 861, 651 P.2d 207

. Rather, we held that “[t]he purposes of the rule and the facts of each case must be analyzed. In determining whether evidence should be admitted, reliability is the key.” Id.

Applying this approach to the facts presented, Smith held that the police interview at issue in that case was an “other proceeding” because “the complaining witness-victim voluntarily wrote the statement herself, swore to it under oath with penalty of perjury before a notary, admitted at trial she had made the statement and gave an inconsistent statement at trial where she was subject to cross examination.” Id. at 863, 651 P.2d 207. The victim's sworn statement was therefore admissible as substantive evidence. Id. at 857, 651 P.2d 207.

¶ 11 We have not reexamined Smith

since it was issued. However, based on Smith, the Court of Appeals has formulated a four-factor test for determining whether an out-of-court statement by a nonparty witness is admissible pursuant to ER 801(d)(1)(i):

(1) whether the witness voluntarily made the statement, (2) whether there were minimal guaranties of truthfulness, (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause, and (4) whether the witness was subject to cross examination when giving the subsequent inconsistent statement.

Thach , 126 Wash.App. at 308, 106 P.3d 782

. Otton does not challenge the trial court's discretionary determinations that the police interview at issue here qualified as an “other proceeding” and that the victim's written statement was properly admitted in accordance with this four-factor test. He also does not contend that the four-factor test is anything but a faithful application of Smith. Rather, he argues that we should reject Smith.

C. Otton has not shown that Smith is incorrect or harmful

¶ 12 Smith

reasonably held that the phrase “other proceeding” must be interpreted in a way that gives effect to its plainly “open-ended” language, Smith , 97 Wash.2d at 861, 651 P.2d 207

, and the constraints of the four-factor test articulated by the Court of Appeals prevent the harmfulness that could theoretically flow from an unrestrained, subjective inquiry into “amorphous notions of ‘reliability,’ ” Crawford v. Washington , 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We therefore hold that Otton has not shown that Smith 's interpretation of an “other proceeding” for purposes of ER 801(d)(1)(i) is clearly incorrect or harmful.

1. Otton has not shown that Smith is incorrect

¶ 13 Where a party asks this court to reject its previous decision, the party must show that the previous decision is “incorrect.” Stranger Creek , 77 Wash.2d at 653, 466 P.2d 508

. Otton contends that Smith is incorrect because it conflicts with (1) the plain language of ER 801(d)(...