State v. Allen

• Decision Date: 25 January 1988
• Docket Number: No. 18734-1-I,18734-1-I
• Citation: 749 P.2d 702,50 Wn.App. 412
• Parties: STATE of Washington, Respondent, v. Jolene ALLEN, Appellant. and Richard Femenella, Defendant.
• Court: Washington Court of Appeals

Page 412

50 Wn.App. 412

749 P.2d 702

STATE of Washington, Respondent, v. Jolene ALLEN, Appellant. and Richard Femenella, Defendant.

No. 18734-1-I.

Court of Appeals of Washington,

Division 1.

Jan. 25, 1988.

Review Denied May 3, 1988.

Mark W. Muenster, Rita Griffeth, Washington Appellate Defender, Seattle, for appellant Joleen Delores Kobe, AKA Joleen Allen.

Cindy Smith, William Jacquette, Deborah J. Phillips, King County Deputy Pros. Atty's., Seattle, for respondent State.

PEKELIS, Judge.

Jolene Allen appeals her conviction for first degree murder. She contends that the trial court erred by: (1) denying her motion to strike a police officer's opinion testimony; (2) responding to a jury inquiry without notifying her or her attorney; (3) giving jury instructions on premeditation and proximate cause which, she claims, alleviated the State of its burden of proof; (4) prohibiting the defense from impeaching a witness with his prior conviction; and (5) permitting the State to impeach Jolene on a collateral matter through a rebuttal witness. We affirm.

FACTS

In May of 1985, Jolene Allen separated from her husband, Chuck Allen. Chuck had battered Jolene regularly during their marriage, injuring her seriously on at least one occasion. A few months after she separated from Chuck, Jolene moved into the home of Toni Leonard. Thereafter, Chuck and Jolene frequently spoke on the telephone. Jolene wanted Chuck to cooperate in settling their divorce; she also wanted him to return some of her personal belongings. After these telephone calls, Jolene was often upset and angry. She told two of her boyfriends that she felt like killing or getting rid of Chuck.

In November of 1985, Jolene met Rick Femenella at the Sunnydale Tavern and at Christmas he asked her to marry him. On January 4, 1986, Chuck called Jolene and asked her to meet him at the Sea-Tac Tavern on Pacific Highway. She agreed but asked Rick to accompany her because she was afraid that Chuck would hurt her. Rick agreed to go, and they drove separately to the tavern.

At the tavern, Jolene found Chuck with his friend, Harold Atkins. Jolene talked to Chuck for several hours while Rick drank beer, shot pool and watched. Jolene and Chuck discussed the possibility of a reconciliation conditioned upon his remaining drug-free for a year. He agreed and asked her if she would live with him again, but Jolene refused. Chuck then began dancing with another woman. Jolene felt hurt and left the tavern. Rick left shortly thereafter and found Jolene at her house crying.

Rick told Jolene that he wanted to "go back [to the tavern] and slug" Chuck. Both Rick and Jolene were very intoxicated. Rick had consumed 28 beers and a half a bottle of whiskey. Jolene had been drinking champagne all day and had taken a handful of antidepressant pills.

At this point Jolene's version of events departs from Rick's account. According to Rick, Jolene wanted to go back to the tavern with him and they rode there together in his blue pickup truck. Rick entered the tavern, saw Chuck dancing, and returned to Jolene. Jolene suggested that they park in the upper parking lot and wait for Chuck to leave the tavern, fearing that Rick would "get in trouble" if he confronted Chuck inside the tavern. Jolene told Rick that he had "better get a gun because [Chuck] carrie[d] a gun" so they drove to Rick's parents' house to get his shotgun. When they returned to the tavern with the gun, Jolene suggested that they wait for Chuck at Harold Atkins' home because Chuck would "drop off Harold at his house before [Chuck went] home". Jolene directed Rick to the Atkins residence. Rick testified that at this time he had abandoned his plan to beat up Chuck and decided he would only "warn" Chuck "to leave Joleen [sic ] alone." When they arrived, Jolene told Rick to park his truck a block away.

Rick's claim that Jolene accompanied him to the Atkin's house was corroborated by the testimony of Robert Weisser, a neighbor of the Atkins. Weisser was awake watching television and heard a noisy truck drive past his house. He looked out the window. In the darkness he saw a light blue pickup truck parked in the street and a woman with shoulder-length sandy brown hair sitting in the middle of the front seat.

Rick got out of the truck, and Jolene asked if his gun was loaded. When Rick replied that it was not, Jolene handed him a shotgun shell from the glove box in the truck. Rick walked up to the Atkins yard and stood by the side of the house. Chuck and Harold drove up and Rick met them walking up the path toward the house.

Mrs. Atkins opened the front door to find Rick pointing a shotgun at Chuck. Harold told her to shut the door and "call the cops." According to Harold, Rick twice asked Chuck if he was "Chuck Allen." When Chuck finally acknowledged who he was, Rick fired the shotgun. Rick, on the other hand, testified that Chuck lunged for the gun and when he stepped back, the gun accidentally discharged, striking Chuck. Rick ran to his truck, and he and Jolene quickly drove away.

Rick told Jolene that he had shot Chuck, and she said she would call Chuck's mother the following day to see what happened. Rick then dropped Jolene off at her house. Jolene told Rick to go to his parents' house, change his clothes, shave off his moustache, and leave the shotgun. He did so and later returned to Jolene's house where he spent the night.

According to Jolene, after Rick said he wanted to beat up Chuck, he told her they were going to his parents' house, but he did not say why. Jolene went with Rick and followed him inside. She remembered discussing a gun permit with Rick's brother, but could not recall seeing a gun. After they left Rick's house, Jolene testified that they fought about whether she would live with Chuck again. Jolene then asked Rick to drop her off at her house, which he did. She denied that she had accompanied Rick to the Atkins' house and claimed she did not see him until he came back to her home and they went to bed.

Jolene further testified that she called Chuck's number the following day but it was busy. She then called Ilda Roland, her mother-in-law, and asked to have Chuck call her when he got off the telephone. Ilda informed Jolene that Chuck was dead. Ilda testified that with no emotion in her voice, Jolene asked her if she was "kidding." Jolene's testimony was that after Ilda informed her of Chuck's death, she was shocked, began crying and then took a tranquilizer.

Detective Tripp arrived shortly thereafter and told Jolene that he was investigating the death of her husband. He testified about Jolene's grief reaction and recounted statements she made during an interview at the police station. During the interview, Jolene did not reveal that Rick had accompanied her to the tavern or that they had gone to his parents' house.

Jolene and Rick were charged with first degree murder in the shooting death of Chuck. Their motions to sever the trials were granted. Rick was tried first and convicted of first degree manslaughter. Thereafter, Jolene was tried and convicted of premeditated first degree murder.

ANALYSIS

I. Opinion Testimony.

Jolene contends that the trial court erred by refusing to strike Detective Tripp's testimony that Jolene's grief about her husband's death did not appear to be sincere. Over defense counsel's objection, Detective Tripp testified that although Jolene "appeared to be sobbing ... her facial expression, the lack of tears, the lack of any redness in her face did not look genuine or sincere". Jolene contends that this testimony constituted an improper opinion on her guilt.

ER 704 provides: "Testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." ¹ The trial court may, in its discretion, admit opinion testimony even when it concerns critical facts. However, opinion testimony on an ultimate issue of law, such as the defendant's guilt, is inadmissible. State v. Carlin, 40 Wash.App. 698, 701, 700 P.2d 323 (1985).

Jolene relies on State v. Haga, 8 Wash.App. 481, 507 P.2d 159, review denied, 82 Wash.2d 1006 (1973), and State v. Sargent, 40 Wash.App. 340, 698 P.2d 598 (1985) to support her contention that Officer Tripps' testimony constituted an improper opinion on her guilt. Both these cases are distinguishable, however. In Haga, an ambulance driver was asked whether the defendant showed any signs of grief in response to the news of his wife's death. Defense counsel did not object to this question and, in fact, implied that it was proper. Haga, 8 Wash.App. at 490, 507 P.2d 159. However, after the witness testified that the defendant showed no signs of grief, the prosecuting attorney went further and asked the witness to testify whether the defendant's reaction was "unusual" as compared to other spouses he had observed in similar situations. Haga, 8 Wash.App. at 490, 507 P.2d 159. The witness thus purported to testify as an "expert" on whether the defendant's reaction was that of a truly bereaved person. The court properly recognized that there was no such area of expertise:

[t]he reactions of a person to sorrow or grief vary with the individual. It is a matter of common knowledge that some people undergo sorrow or bereavement with composure. Opinions as to what constitute evidences of grief also vary with the individual.

Haga, 8 Wash.App. at 491, 507 P.2d 159 (quoting Harrelson v. State, 217 Miss. 887, 891, 65 So.2d 237 (1953)). In short, the testimony was not "otherwise admissible" because it violated ER 702.

Likewise in Sargent, a police officer was asked for his opinion of the defendant's response to news of his wife's death. He answered:

My impression of his response? It was, his response kind of surprised me. Like I thought that he knew that his wife was dead and then he kind of went forward and says, "Lori, you mean something happened to Lori?" You know, I was somewhat...