State v. Chester III
| Decision Date | 30 September 2003 |
| Docket Number | 20866-4-III.,22076-1-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DAVID KENNETH CHESTER III, Appellant. |
Appeal from Superior Court of Grant County, Docket No: 01-1-00317-1, Judgment or order under review, Date filed: February 5, 2002.
David Kenneth III Chester and Walla Walla, WA, and Paul J. II Wasson, Attorney at Law, Spokane, WA, Counsel for Appellant(s).
Carolyn Jones Fair, Grant Co Prosecutor's Office, Ephrata, WA, and Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, Ephrata, WA, Counsel for Respondent(s).
UNPUBLISHED OPINION
David K. Chester III assaulted his former domestic partner. While in jail pending trial for second degree rape and violating a protection order, he wrote three letters to the victim, threatening to publicize intimate details of their sex life if she testified. The State added three counts of witness intimidation and three more counts of protection order violation. After a trial that pitted Mr. Chester's credibility against that of the victim, a jury found Mr. Chester guilty of second degree rape and all but one of the additional charges.
On appeal, he challenges various evidentiary rulings, the failure to give a lesser included offense instruction, and the propriety of the prosecutor's closing argument. Defense counsel did not object to the rulings, request an instruction, or object to the admission of Mr. Chester's prearrest statements. So Mr. Chester also contends he received ineffective assistance of counsel.
While this appeal was pending, Mr. Chester moved pro se in the superior court for a new trial based on a recantation by the victim. We have consolidated Mr. Chester's appeal of the denial of that motion. We affirm both the conviction and the denial of postconviction relief.
At 5:45 a.m. on June 1, 2001, Moses Lake police received a call from Charlotte Caldwell West from a service station near the residence of David K. Chester. Ms. West said she had recently broken off a long-term, on-again-off-again relationship with Mr. Chester. That morning, when she dropped off the couple's five-year-old son at Mr. Chester's apartment, he asked her to come in and talk. She did. He became violent, tore off her clothes and, in the immediate presence of the child, penetrated her vagina with two fingers, then slapped or smeared her face with them. Mr. Chester was charged with one count of second degree rape, RCW 9A.44.050(1)(a), and one count of violation of a protection order, RCW 26.50.110(4)—both with a domestic violence enhancement, RCW 10.99.020. At the police station, after being read his Miranda1 rights, Mr. Chester gave a 26-page tape-recorded statement. During pretrial proceedings, two different defense lawyers stipulated to the admissibility of his prearrest statements, the tape, and a verbatim transcript.
Mr. Chester wrote three letters to Ms. West from jail, threatening to humiliate her publicly by exposing a home-made sex video unless she dropped the prosecution. Based on these letters, the State added three counts of witness intimidation and three new counts of domestic violence violation of a protection order, RCW 9A.72.110(1)(a), (b), (c).
The trial court heard extensive pretrial evidentiary motions. Mr. Chester and Ms. West were the only competent witnesses to the assault. Each side attacked the other's credibility. Each side refused to divulge its theory of the case. The defense would not say whether it would enter a general denial or claim consent or accident.2 The State would not say whether Ms. West would admit or deny prior consensual relations. This made it difficult for the court to rule. With no conceivable theory ruled out, the court did its best to rule on the relevancy of voluminous amounts of proposed evidence.
The State proposed to introduce Mr. Chester's prior bad acts. The defense did not object. Instead, it argued that this evidence opened the door to alleged unseemly conduct by Ms. West, otherwise barred by the rape shield law. The defense also proposed to allege that the purpose of Ms. West's visit that morning was to perform sexual favors as repayment of a loan from Mr. Chester. The court ruled that the State would be permitted to rebut this with evidence that Mr. Chester was in no position to loan money because of current debts of $4,000 to the Department of Labor and Industries and $25,000 to his ex- wife for child support.
The State moved to admit evidence of Mr. Chester's prior convictions for protection order violations as probative of a pattern of jealous violence against Ms. West and her new husband. The defense welcomed this evidence also, because it discredited Ms. West and bolstered a potential alternative defense that the assault started out as a consensual act. The court ruled the State could bring up the prior assaults and protection order violations only if Mr. Chester claimed the penetration was accidental.
The court observed that the bulk of the trial would be spent arguing collateral issues. Defense counsel responded: 3 The court remarked, `I've never seen any two parties so agreeable on prior bad acts.'4 Defense counsel replied, `Well, the woods are full of them here.'5
The jury found Mr. Chester guilty of second degree rape and of all but one of the corollary charges.
We review evidentiary rulings for abuse of discretion. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002); State v. Alexis, 95 Wn.2d 15, 16, 621 P.2d 1269 (1980). 'Discretion is abused if it is exercised on untenable grounds or for untenable reasons.' Thang, 145 Wn.2d at 642 (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Mr. Chester's trial strategy was either acquiescing in or actively seeking the admission of the challenged evidence for the opportunities it created to embarrass and discredit the complaining witness. He nonetheless now challenges the court's evidentiary rulings.
Under the invited error doctrine, a criminal defendant may not set up error at trial and then complain of it on appeal. In re Pers. Restraint of Thompson, 141 Wn.2d 712, 723, 10 P.3d 380 (2000). The doctrine applies when counsel takes affirmative action that induces the trial court to take an action that party later challenges on appeal. Id. at 723-24. Given Mr. Chester's posture at trial, he will not now be heard to complain about the trial court's evidentiary rulings. The court did not abuse its discretion. Moreover, contrary to Mr. Chester's contentions, no evidence rule operates to exclude any of this evidence. The prior conduct evidence was not admitted on authority of ER 404(b) or ER 608 or ER 609 to prove his character for lack of honesty. Rather, it was substantive evidence attacking the veracity of his direct testimony. As the court explained: 6 The judge was right. The rebuttal of direct testimony was admissible. State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105 (1995).
On cross-examination, Mr. Chester brought up his convictions for contracting without a license to prove that he could do lucrative work and had money. He accused the victim of prostituting herself to `work off' a loan. In doing so, he put at issue all aspects of his financial condition and opened the door for the State to prove that he was in no position to lend money. The State did so by establishing that, during the relevant period, Mr. Chester paid his rent only one month out of five, owed the Department of Labor and Industries at least $4,000 for two convictions for contracting without a license, and owed his ex-wife $25,000 in back child support. The State gave Mr. Chester pretrial notice that this evidence would come in to rebut the `working off a loan' defense.7
A recent Internet article reporting a war story remarkably similar to the one Mr. Chester claimed to have experienced in the past also went to the veracity of Mr. Chester's sworn testimony elaborating on his military service. The court did not abuse its discretion in admitting it.
Mr. Chester's contention that counsel was ineffective for failing to object to this evidence is not borne out by the record. Counsel objected to any evidence that did not further the defense strategy of putting the victim on trial.
Mr. Chester contends counsel was ineffective in failing to move to suppress his prearrest statements to the police. He contends that the police identified him as the prime suspect before they first approached him and should have read him his rights before questioning. State v. Dictado, 102 Wn.2d 277, 687 P.2d 172 (1984). If those statements had been suppressed, he contends, his later full confession at the station would also have to be suppressed. But the record suggests no grounds for suppressing the statements.
An investigative encounter with a suspect, supported by probable cause, does not require Miranda warnings. State v. Hilliard, 89 Wn.2d 430, 434-36, 573 P.2d 22 (1977). Without a custodial interrogation, Miranda is not implicated. State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479 (1995). A voluntary confession given after Miranda is admissible so long as the pre-Miranda statements were not coerced. State v. Wethered, 110 Wn.2d 466, 473-74, 755 P.2d 797 (1988) ().
Upon arriving at the scene, officers talked to both parties to determine whether a crime had been committed and by whom. The initial interview with Mr. Chester was an investigative encounter to corroborate Ms. West's statements. There was no probable cause to arrest based solely on her uncorroborated statements. Once...
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