State v. Bannister

• Decision Date: 04 October 2021
• Docket Number: 81187-8-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. RICHARD BANNISTER, Appellant.

STATE OF WASHINGTON, Respondent, v. RICHARD BANNISTER, Appellant.

No. 81187-8-I

Court of Appeals of Washington, Division 1

October 4, 2021

UNPUBLISHED OPINION

Coburn, J.

Richard Bannister appeals his conviction for rape in the second degree. He contends that an emergency room doctor's "diagnosis" that the victim was "sexually assaulted" was an impermissible opinion on guilt. While the testimony was confusing, in context, it is not a manifest constitutional error. We affirm. Because Bannister cannot demonstrate prejudice, his ineffective assistance of counsel claim also fails.

FACTS

Richard Bannister met A.H. when she moved into his senior-living apartment building in September 2017. They became friends occasionally watching movies together in his apartment. On July 4, 2018, A.H. walked past Bannister's door on her way to a picnic with friends. He invited her in for a drink and she accepted.

According to A.H., after talking for a while, Bannister went into the Citations and pin cites are based on the Westlaw online version of the cited material. bathroom and came out without his clothes on. His fists balled up, his face red and sweating he told A.H., "I'm going to fuck you." He grabbed A.H. and threw her onto his bed, ripped off her jeans, and removed her underwear. Bannister held onto her knees and legs and spread them apart and started licking her genital area, putting his tongue in her vagina. A.H. screamed for help repeatedly while asking Bannister to let her go. A.H. then grabbed a lamp, while knocking over a nightstand and attempted to hit Bannister with the lamp to escape. Bannister grabbed the lamp and A.H. made it off the bed, onto the floor, but then lost control of her bowels and defecated on the floor. She started crawling toward the door, scraping her knees and elbows. Bannister moved on top of her, telling her he would break her jaw if she screamed. He then attempted to push his penis into her vagina. At that point, a person started banging on the door saying they had contacted the police and they were on their way. Bannister then went into the bathroom and threw A.H. a towel and told her to clean herself up, telling her "Don't you go out there and lie on me." He then opened the door, shoved her out, and closed the door. Bannister opened the door again and threw her clothes out.

The two witnesses who saw A.H. in the hallway testified that on their way to the apartment elevator, they heard loud noises and the sounds of furniture falling in Bannister's apartment. They heard a woman screaming, "Somebody please help me. He's hurting me. He's trying to rape me." A.H then came "flying out" onto the floor in her underwear and a little top. A.H. looked as though she had been fighting. Bannister's door slammed and locked. A.H was crying and shaking, telling them, "He's got my stuff. And he's trying to rape me." Bannister's door opened and a pair of pants were thrown in A.H.'s face.

When police arrived, A.H. appeared scared and disheveled, her hair messed up, rug burns on her elbows and knees, and missing clothing and shoes. She told the officers that Bannister had sexually assaulted her.

Police knocked on Bannister's door and he agreed to speak with them. When they entered his apartment they saw a pair of ladies' sandals, a hat, and a purse. They also observed that the apartment had just been cleaned: a bottle of 409 cleaner sat out, and there were wet and slightly brown spots on the floor near the bed. Police conducted a recorded interview with Bannister. Bannister referred to A.H. as his "gal pal." He told officers she was as "cute as a button." "If you don't want to kiss her you're fucking gay."

Bannister told police that he was asleep when A.H. came into his apartment. They started watching a movie together and A.H. started talking about "gangster shit" so he told her to leave. He claimed that she refused to leave, so he left the room and she eventually left. When officers asked about the wet floor stains, Bannister said they were from food but later in the interview said that A.H. had spilled liquid on the floor. Bannister said he never touched A.H. When asked if he had oral sex with her he said, "No. I wish." Police arrested Bannister.

Bannister presented a different version of events at trial. He claimed A.H. washed her vagina on his washcloth for "several minutes" and then came out of the bathroom with her pants undone. When he told her to leave she "stumbled backwards," hit her shoulder on the lamp, her pants fell down and then she defecated. Bannister said he did not tell the police the truth about the stains because A.H.'s incontinence was a "private matter."

After the event, A.H. went to the hospital. She told the emergency room doctor that she had been sexually assaulted. The doctor documented A.H.'s skinned elbows and knees and bruising on her left shoulder. The doctor did not conduct any sort of sexual exam, leaving that for the sexual assault nurse examiner (SANE). The SANE also noted the scrapes on A.H.'s elbows, knees, and bruise to her shoulder but also noted bruising on A.H.'s left outer thigh and right knee. The SANE took vulvar perineal swabs on the outside of A.H.'s vagina to be tested for evidence. The results indicated the presence of male saliva DNA (deoxyribonucleic acid) matching a reference sample from Bannister. The type of DNA testing performed in this case was "Y-STR," a Y-chromosome testing. The sample matched the DNA profile of Bannister and his male paternal relatives. A forensic scientist testified that such a match would not be expected to "occur more frequently than one in 8600 male individuals in the U.S. population."

Bannister was charged in King County Superior Court with rape in the second degree by forcible compulsion and indecent liberties.

At trial, during the State's direct examination of the emergency room doctor, the prosecutor asked the doctor to review the medical chart created at the time A.H. reported to the hospital, including the notes the emergency room nurse made, and her own notes. The doctor read aloud the notes from the emergency room nurse:

Patient presents to ED for a complaint of hip pain and sexual assault that happened today around 1630. Patient tearful when explaining what happened today. Patient states she was at apartment complex in a computer [room] and saw a guy that she's known. Patient states he asked her if she wanted a drink, and she states she went with him. And he came out naked.

Patient states he threw her onto bed and began assaulting her. Patient states she was screaming but was told that if she continued to scream he said he would break my jaw. Patient states she told him, 'Do whatever, just let me go.' She states that he was licking me and that there were a couple of people outside that knocked and heard me scream. Patient stated, 'I don't know if he came inside me.' Patient states PD were on the scene and arrested him.

The doctor also read her own notation that A.H. "presents today after recent sexual assault just prior to arrival. . . . She notes that she has some abrasions on her bilateral elbows and knees but no other injuries." The prosecutor asked, "Based on your examination of how you - how she told you the injuries occurred, in your evaluation of her as a doctor, were they consistent?" The doctor answered, "Yes."

After the doctor explained that she referred A.H. for further forensic evaluation, the prosecutor asked the doctor, "[W]hat was your final diagnosis for [A.H.] as it relates to this incident?" The doctor replied, "Sexual assault of adult, multiple abrasions, contusion of left shoulder." Defense did not object.

During cross-examination, the doctor stated more than once that she does a physical exam but does not perform sexual exams and did not examine A.H.'s genitalia. During re-cross examination of the doctor, defense introduced the word "rape" into the diagnosis.

[DEFENSE COUNSEL]: So, [Doctor], I think you concluded your testimony by saying your final diagnosis was adult rape sexual -- was it called sexual rape?

[WITNESS]: That is what I diagnosed at that time.

[DEFENSE COUNSEL]: Okay. And that was basically based on the reported assertions of [A.H.]; is that correct?

[WITNESS]: Yes.

A jury convicted Bannister of rape in the second degree and indecent liberties. At sentencing, the trial court vacated the indecent liberties charge on the basis that it merged with the rape charge. The court imposed a standard range, indeterminate sentence of 95 months to life. Bannister appeals.

DISCUSSION

Opinion Testimony

Bannister argues that the emergency room doctor's testimony that she diagnosed A.H. with "sexual assault" was an impermissible opinion on guilt and such an error was not harmless. Bannister did not object to the doctor's testimony. Generally, appellate courts will not consider issues raised for the first time on appeal. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).

Appellate courts are and should be reluctant to conclude that questioning, to which no objection was made at trial, gives rise to "manifest constitutional error" reviewable for the first time on appeal. The failure to object deprives the trial court of an opportunity to prevent or cure the error. The decision not to object may be a sound one on tactical grounds by competent counsel, yet if raised successfully for the first time on appeal, may require a retrial with all the attendant unfortunate consequences. Even worse, and we explicitly are not referring to counsel in this case, it may permit defense counsel to deliberately let error be created in the record, reasoning that while the harm at trial may not be too serious, the error may be very useful on appeal.

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