State v. O'Connor

• Decision Date: 15 September 2005
• Docket Number: No. 75023-8.,75023-8.
• Citation: 119 P.3d 806,155 Wn.2d 335
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Courtney James O'CONNOR, Petitioner.

Page 806

119 P.3d 806

155 Wn.2d 335

STATE of Washington, Respondent, v. Courtney James O'CONNOR, Petitioner.

No. 75023-8.

Supreme Court of Washington, En Banc.

Argued October 28, 2004.

Decided September 15, 2005.

Carla Barbieri Carlstrom, Julie Dee Cook, James Morrissey Whisman, King County Prosecutor's Office, Seattle, for State of Washington.

Kitteridge Oldham, Buck & Gordon, LLP, Christopher Gibson, Seattle, for Courtney James O'Connor.

BRIDGE, J.

¶ 1 Courtney James O'Connor was accused of slashing the tires on a vehicle owned by Rachel Bologna, with whom he had had a dating relationship. Investigators discovered that O'Connor gave Bologna several hundred dollars to replace the tires. O'Connor moved to exclude evidence of his payment under Evidence Rule (ER) 408, but the trial court disagreed and both Bologna and O'Connor testified about the payment at trial. The jury found O'Connor guilty of second degree malicious mischief—domestic violence.

¶ 2 On appeal, O'Connor argued that evidence regarding his compromise, in the form of payment for the tires, should have been excluded under ER 408. State v. O'Connor, 119 Wash.App. 530, 536, 81 P.3d 161 (2003) (published in part). The Court of Appeals concluded that ER 408 applies in criminal trials only where the criminal offense charged is a misdemeanor subject to compromise under chapter 10.22 RCW. Id. at 548, 81 P.3d 161. Because O'Connor's offense did not qualify, his payment to Bologna was properly admitted. Id.

¶ 3 O'Connor now argues the Court of Appeals erred when it refused to hold that ER 408 was applicable in his criminal trial. He also claims that his constitutional right to confront witnesses was violated when he was not allowed to cross-examine Bologna about a claim she made to her insurance company to pay for the damaged tires.

¶ 4 We conclude that ER 408 does not apply in criminal trials even where the charged offense is subject to compromise. Thus, evidence of O'Connor's payment to Bologna and statements he made with regard to that payment were properly admitted at trial. In addition, we conclude that in the context of these proceedings, it was within the trial court's discretion to exclude evidence that the victim received money both from O'Connor and from her insurance company. We affirm the Court of Appeals and uphold O'Connor's conviction.

I Facts and Procedural History

¶ 5 In 2001, Bologna and O'Connor dated for several months, though not in an exclusive relationship. According to Bologna, on November 7, 2001 she was studying for graduate entrance exams when O'Connor called and asked to see her. She refused. O'Connor called her again late that evening and insisted on coming to her home to pick up a compass that he had loaned to her. She reiterated that she did not want to see him but agreed to leave the compass in the mailbox. As she was going back inside, she saw O'Connor in the vicinity of her car, which was parked near the street in front of her house, but she did not see anything suspicious. Soon after, O'Connor called Bologna again from his cell phone. He stated that he did not think that things were working out between them and Bologna agreed.

¶ 6 The next day, Bologna discovered that all of the tires on her car had been slashed. Bologna called O'Conner and accused him of damaging her tires, but he denied doing so. She told him that she was going to call the police "if this didn't get taken care of," and he told her to go ahead. Verbatim Report of Proceedings (RP) (Apr. 16, 2002) at 24. Bologna contacted police, and a detective first spoke with O'Connor on November 9.

¶ 7 A couple of days later, about one week after Bologna's tires were slashed, O'Connor gave her $800, "apologized for everything," and stated that the money was to "make everything right." RP (Apr. 16, 2002) at 27-28. However, he did not admit to slashing the tires.

¶ 8 The detective talked to O'Connor again a couple of days after he had given money to Bologna. O'Connor told the detective that he had provided financial assistance to Bologna to replace the tires and that he "considered the matter settled." RP (Apr. 16, 2002) at 46. O'Connor also told the detective to do whatever was "appropriate or necessary, but he considered [the matter] closed." RP (Apr. 16, 2002) at 46-47. O'Connor did not admit to the detective that he had slashed the tires. The detective then talked to Bologna, who said that she had replaced the tires with the money provided by O'Connor, and she preferred at that point to "let the matter rest." RP (Apr. 16, 2002) at 48.

¶ 9 The State charged O'Connor with one count of malicious mischief in the second degree—domestic violence for slashing the tires. The domestic violence charge was based on the dating relationship between O'Connor and Bologna. Prior to trial, O'Connor moved to exclude evidence of the $800 he gave to Bologna, pursuant to ER 408. The trial court denied the motion, reasoning that O'Connor's statements were admissible as admissions against interest.

¶ 10 After the trial court ruled that evidence of O'Connor's $800 payment to Bologna was admissible, the State moved to exclude evidence that Bologna received money for the tires both from O'Connor and from her insurance company. Defense counsel argued that he should be able to cross-examine Bologna on the subject in order to impeach her credibility. He asserted that the fact that Bologna received and retained about $300 more than she spent to replace the tires "goes to her credibility, her ability to tell the truth on the stand." RP (Apr. 15, 2002) at 13. The trial court reserved ruling until it could hear Bologna testify as to the chronology of the payments.

¶ 11 Bologna then testified outside of the presence of the jury that she filed a claim with her insurance company about three days after her tires were slashed. At about the same time, she had her car towed and the tires repaired; her total expenses amounted to about $1,000. A couple of days later, O'Connor gave her $800 and apologized to her. She later received $500 from her insurance company.

¶ 12 After this testimony, defense counsel again sought to attack Bologna's credibility because she had accepted a total of $1,300 for the tires. The State replied that because Bologna filed a claim with her insurance company before she received any money from O'Connor, she had not set out to defraud her insurance company, and her retention of the extra $300 was relevant only to her character and not to whether she was more likely than not testifying truthfully.

¶ 13 The trial court agreed, ruling that:

[I]t appears from her testimony that she received the money from Mr. O'Connor after she had filed a claim with her insurance company but before she received any money from the insurance company. That being the case, arguably the $800 that Mr. O'Connor paid to her was owing at the time the payment was made, and I think the issue of whether or not she took advantage of the insurance company is an independent issue, which goes to her character, does not go to the credibility in the sense of it being materially relevant to the commission of the crime.

It would be different if in fact the insurance company paid off and then she received the money from Mr. O'Connor. .... [I]t appears to the Court that even though it might in some sense be relevant to Ms. Bologna's credibility, that it really is a character issue rather than a credibility issue, given the specific facts of this case, as they were presented to the Court, and that will be suppressed.

RP (Apr. 16, 2002) at 14-15.

¶ 14 At trial, O'Connor claimed that he had not called Bologna or gone to her house on the night in question.¹ He testified that he told the detective, "I'm not admitting this. I had nothing to do with this. And I told him at the time that I had taken care of the situation maturely, and that I encouraged him to continue on with the investigation." Id. at 57. However, O'Connor could not offer an explanation for what "situation" he was referring to, other than the slashed tires. O'Connor testified that he gave the money to Bologna specifically to pay for the tires in order to "try to help her" because he still had feelings for her. Id. at 58. He claimed that at the time he gave Bologna the money for the tires, he did not know that the police were investigating the crime. The detective's testimony, however, contradicted this assertion; the detective explained that only two days after the incident, he told O'Connor that he was conducting a criminal investigation. On O'Connor's cross-examination, the prosecutor emphasized the ridiculousness of the notion that he would give Bologna $800 out of kindness if she had falsely accused him of slashing her tires.

¶ 15 Bologna testified O'Connor did not specifically tell her that the $800 was to replace the tires, but he said it was "[t]o make everything right." Id. at 28. Even so, the detective testified that O'Connor gave Bologna the money specifically to replace the tires. Finally, in closing argument, defense counsel argued that O'Connor gave the money to Bologna specifically to pay for the tires. Thus, the State's case was based not only on Bologna's testimony but also on the detective's testimony (in which he recounted his conversations with O'Connor), as well as O'Connor's explanation of why he gave Bologna the money.

¶ 16 The jury found O'Connor guilty of second degree malicious mischief—domestic violence. He appealed and the Court of Appeals affirmed. O'Connor, 119 Wash.App. 530, 81 P.3d 161. The Court of Appeals held that ER 408 applies in criminal trials but only to the extent that the offense charged is a misdemeanor subject to compromise under chapter 10.22 RCW. Id. at 548, 81 P.3d 161. Because O'Connor's offense did not meet the requirements of chapter 10.22 RCW, ER 408 did not apply to his criminal trial. Id. O'Connor filed a petition for review in this court, which we granted at 152 Wash.2d 1006, 99 P.3d...