State v. Betts, No. 34350-9-II (Wash. App. 7/24/2007)
| Decision Date | 24 July 2007 |
| Docket Number | No. 34350-9-II.,34350-9-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DONALD RAY BETTS, Appellant. |
Appeal from Pierce County Superior Court. Docket No: 04-1-03534-3. Judgment or order under review. Date filed: 01/27/2006. Judge signing: Honorable Rosanne Nowak Buckner.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St Box 135, Seattle, WA, 98115-6655.
Counsel for Respondent(s), P. Grace Kingman, Attorney at Law, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2102.
A jury convicted Donald Betts of two counts of second degree rape and one count each of first degree burglary and fourth degree assault. Betts appeals, claiming that: (1) the prosecutor committed prejudicial misconduct during closing argument by attacking the witnesses' credibility; (2) the trial court erred in denying his motion to strike the jury panel and in admitting his out-of-court statement; (3) he is entitled to a new trial under the cumulative error doctrine; and (4) the trial court erroneously sentenced him to life without the possibility of parole under the Persistent Offender Accountability Act (POAA)1 because it found a prior Colorado conviction comparable to attempted second degree rape in Washington. Because attempted first degree sexual assault in Colorado and attempted second degree rape in Washington are not comparable, we affirm Betts' convictions but remand for resentencing within the standard range.
Donald Betts was arrested on June 6, 2004, and charged with rape, burglary and assault on Heather Burns. Burns and Betts were acquaintances who met each other at the home of Burns' close friend and neighbor, Michael Smith, approximately one year before the attack occurred. At the time they met, Betts lived next door to Smith, but he and his family moved away a short time later.
Burns first noticed Betts back in the neighborhood in May 2004, when he pulled into her driveway, honked his horn to attract her attention, and asked her whether she knew if Smith was at home. Two or three days later, Betts again pulled into her driveway and asked if she "wanted a boyfriend" and if she "wanted to go to lunch." Report of Proceedings (RP) (Nov. 9, 2005) at 307. Burns declined.
Over the following week, Betts repeatedly pulled into Burns' driveway and honked. Burns went outside when Betts honked, but she never invited him into her house. She felt that "it was kind of weird" that he continued to come by.3 RP (Nov. 9, 2005) at 308. At one point however, Burns gave Betts her telephone number, thinking he would stop coming by her house so often if he had her number. Later, when she saw that he had called her twelve times, Burns blocked Betts' telephone number so that he could not get through on her telephone.
On Saturday, June 5, Betts walked across the street from Smith's home while Burns was in her front yard. He was upset that Burns had blocked his calls and told her that "nobody disrespects him that way." RP (Nov. 9, 2005) at 312. Betts then asked her what she was doing that night. Burns lied and told him that she was going to Seattle for the evening when she actually went to a local bar with her cousins.
Burns testified that, at the bar, she had four rum and coke drinks over the course of five hours and had "a little bit of a buzz." RP (Nov. 9, 2005) at 315. After one of her cousins dropped her off at her home, Mandy Joyner, Smith's girlfriend, invited her to Smith's house. When Burns entered Smith's house around 1:30 to 2:00 am, Betts was there. Seeing Betts, Burns immediately asked Joyner to walk her back to her home.
Two or three minutes after Burns returned to her home with Joyner, Betts and Smith came over. When Burns, Betts, and Smith were standing in the kitchen, Burns asked Betts to leave. Betts "back-handed" her on her face, RP (Nov. 9, 2005) at 320, telling her that "no bitch disrespects him like that." RP (Nov. 9, 2005) at 321. She fell to the floor from the blow. Burns then asked Smith to get Betts out of her home and Betts started chasing Burns around the kitchen table. Smith finally managed to get Betts out of Burns' home. Joyner came into the house; Burns was crying but was able to explain what happened.
Terry Chase, a neighbor, came to Burns' home when she heard Betts say that "[he] had (testimony of Jayme Lundstrom) just knocked this bitch out." RP (Nov. 14, 2005) at 432. Chase testified that Burns was hysterical and that "[h]er face was really red" and "had a hand print on the left side." RP (Nov. 14, 2005) at 433. Smith also testified that he saw marks on the right side of Burns' face after Betts hit her. Ten minutes later, Betts returned and knocked on Burns' door. Burns telephoned Joyner and asked her to come back over. Betts told Joyner that he hit Burns because she "disrespected him." RP (Nov. 9, 2005) at 326. Betts left with Joyner, but returned 10 to 15 minutes later and again pounded on the door.
Burns testified that she did not call the police because Betts had said earlier that "nobody calls the cops on him" and because she "wasn't going to let him back in." RP (Nov. 9, 2005) at 329. She opened the front door, but kept her screen door shut. Betts told her that he wanted to apologize for hitting her. When she told him to leave, he asked to shake her hand. She said no, but he kept saying that he would leave if she would shake his hand. She eventually unlocked her screen door and opened it enough to get her hand out. He then pulled the door open and came into her home.
Once inside, he said he wanted to have sex with her. She refused, but he told her that "[she could] either give it to him willingly or he was going to take it." RP (Nov. 9, 2005) at 332. She retreated to her kitchen because she hoped to escape through a small garage door connected to the kitchen, but he followed her and told her to take her pants off. When she refused, he forcibly pulled her pants down and removed her shirt. Bending her over the kitchen counter, he grabbed her arms from behind and penetrated her vagina with his penis for about ten minutes. Afterwards, he threatened to hit her again and then told her to take him to her bedroom. Instead she took him to a spare bedroom where he told her to get on top of him. He penetrated her vagina for about five minutes.
Burns told Betts that she had to use the bathroom and, after putting on her pajamas in the bathroom, she came out and told him that she wanted a cigarette. He told her to make it quick because he was not done with her. She smoked a cigarette outside her backdoor with Betts standing naked right inside the door as "[i]t was starting to get light outside." RP (Nov. 9, 2005) at 348.
When Betts told Burns to get back in the house, she replied that "you are not going to do this to me anymore." RP (Nov. 9, 2005) at 348. She then ran through her backyard and climbed over a metal cyclone fence. She snagged herself on the fence, but was able to run to the home of Stanley Lehman, three or four houses away. Lehman testified that she was "[s]cared, shaking, near tears" when he opened the door for her. RP (Nov. 14, 2005) at 464. From there, she called 911 and then called her mother.
When Smith saw Betts' car parked in Burns' driveway, he became concerned and was preparing to go to her house when he saw Betts' car "come[] flying down the road." RP (Nov. 15, 2005) at 624. Smith went to Burns' home to check on her and found the door open and the house empty. Twenty minutes later, Betts telephoned Smith and told him that Burns was asleep, that he had had sex with her, and that he stole $200 from her. Smith told Betts that there were police cars on the road; Betts asked him to not reveal where he lived. When Burns returned to her home, she noticed that her wallet was outside her purse and that $60 was missing from it.
Her mother took her to Tacoma General Hospital. Dr. Kevin Callahan, who examined her, testified that he saw no swelling or bruising on her face, acknowledging that his observations were not "necessarily inconsistent with the history [he] obtained from [her]." RP (Nov. 15, 2007) at 518. Patsy Pitts, the nurse who performed a sexual assault examination on Burns, testified that she saw discoloration on Burns' right jaw.
Deputy Sheriff Mark Fry took Betts into custody the same day. Although Betts denied hitting or raping Burns, or stealing money, he admitted that he had sex with her and asserted that it was consensual. The State charged Betts with two counts of second degree rape (counts I and II) and one count each of first degree burglary (count III), third degree theft (count IV), and fourth degree assault (count V). The information was later amended to increase count IV to second degree robbery. The trial court conducted a Criminal Rule (CrR) 3.5 hearing and found that "the statements made by [Betts] on June 6[], 2004, are admissible into evidence." RP (Nov. 7, 2005) at 50.
During trial, when Fry testified that Betts had "claimed to have a prior sexual relationship with [Burns]," the State asked, "Did you ask [Betts] if he was aware of why [] Burns might be making [the] allegation [in this case]?" RP (Nov. 15, 2005) at 560. Betts objected to this question, but the trial court overruled the objection, stating, RP (Nov. 15, 2005) at 563. The following questioning ensued:
[Fry]: He claimed that there was another individual that had been bugging her and maybe that was why.
[The State]: Did he say who that individual was and the age of the individual?
[Fry]: A white male named Terry, about 19. RP (Nov. 15, 2005) at 566.
Burns did not testify about any visitors while Betts was at her home, but Joshua Smith,4 one of Betts' witnesses, testified that he went over to Burns' home...
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