State v. Dunbar
| Decision Date | 02 May 2019 |
| Docket Number | 35349-4-III |
| Citation | 8 Wn.App.2d 1059 |
| Parties | STATE OF WASHINGTON, Respondent, v. DANIEL HERBERT DUNBAR, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Daniel Dunbar appeals his convictions for possession of a stolen motor vehicle and witness tampering. He contends his inability to obtain answers in cross-examining a critical witness deprived him of his Sixth Amendment[1] right of confrontation, but we conclude it was his own argument that invited the court's mistaken belief that it could not compel answers. We find no abuse of discretion in two evidentiary rulings that are challenged, and conclude that given the unit of prosecution in witness tampering cases, no unanimity instruction was required. The convictions are affirmed.
Victoria Enright owned a white 2001 Pontiac Grand Am that she reported stolen on December 13, 2016. She told a responding officer that it had to have been stolen between 3:00 a.m., when she went to bed, and 1:00 p.m., when she noticed it missing. Although she had no proof that Daniel Dunbar stole the car she told the deputy she suspected him of taking it. She described Mr. Dunbar as a former friend, but suspected him "[b]ecause he was the only one that I felt had a problem with me at the time." Report of Proceedings (RP) at 245.
For days, Ms. Enright communicated by text and phone calls with Mr. Dunbar, accusing him of having taken her car. He denied stealing it, but told Ms. Enright he knew who had it.
A week after the car went missing, Ms. Enright, who had been provided with a rental car by her insurer, drove around areas familiar to Mr. Dunbar. She came across her Pontiac parked on the side of the road with Mr. Dunbar asleep inside. Its valid license plates had been replaced with others. She approached the car, told Mr. Dunbar to get out, and punched him in the face. She then drove her rental car to a nearby gas station and called the police to report having located her car.
Her report was referred to Spokane County Sheriff's Deputy Wade Nelson, who traveled to where Ms. Enright reported having seen the car. He saw both the car and Mr. Dunbar, who was walking away from it. The deputy called out to Mr Dunbar, who returned and spoke to him. Mr. Dunbar provided his name and admitted having heard "through a grapevine" that Ms. Enright suspected him of taking her car. RP at 329. He told the deputy it was actually "Cody" who took the Pontiac, not him. Id. Mr. Dunbar claimed he found Ms. Enright's car and decided to drive it to a friend's house but had run out of gas. He claimed he tried to contact Ms. Enright that morning to return the car to her.
Deputy Nelson arrested Mr. Dunbar for possessing a stolen vehicle. In a search incident to arrest, he found Mr. Dunbar to be carrying a shaved key. Mr. Dunbar was charged with possession of a stolen motor vehicle and making or possessing a motor vehicle theft tool.
The charges were later amended to include a charge of witness tampering, based on Mr. Dunbar's contacts with Ms Enright between December 20, 2016 and January 29, 2017. The first was a phone call from the county jail on the night of Mr. Dunbar's arrest. During the call, he asked Ms Enright if she was pressing charges, told her she shouldn't, and claimed he did not steal her car but had only been trying to get it back for her at the request of her aunt. In the second contact, a rambling voicemail message left for Ms. Enright on January 4, 2017, he accused her of giving him permission to recover her car and implied he could make trouble for her with her insurer. He focused on whether she would appear at trial:
Alls you have to do is not show up for trial. I am not telling you what to do. I am not asking you what to do. I am asking you are you coming or not? I need to know. Trial is on the 13th of next month. And it's your choice. . . . You know that I dealt with your insurance company before, so we can go two ways with this. You could lose your truck or I can just get out and call to thank you for being (inaudible) even if you testify, and be friends, maybe, I hope. Maybe not but here's the deal. Are you coming to testify or not? I need to know now. Bye.
Ex. P-14. In the third call, made on January 29, Mr. Dunbar was apologetic and again asked Ms. Enright if she was coming to trial. When she answered that she didn't know and asked him why, Mr. Dunbar, who faced prosecution on other pending charges, answered:
Because if you don't come then that one will each get dismissed. They offered me 114 months. They want to run, they want to run two of them back to back on me; that is what they want to do. I told them no, let's go to trial, because I am off the scale on points. You know what I mean?
Ex. P-13 (some capitalization omitted).
The State's efforts to subpoena Ms. Enright to appear at trial were unsuccessful, and as the trial date approached, the State planned to rely on the doctrine of forfeiture by wrongdoing to offer her prior statements in lieu of live testimony. Approximately a week before trial, however, the State learned of Ms. Enright's whereabouts, obtained a material witness warrant, and was successful in locating and detaining her in the Spokane County Jail. Upon return of the warrant on the Friday before trial, Scott Mason was appointed to serve as her counsel and Ms. Enright was released based on her assurance to the court that she would appear for trial the next week.
The State called Ms. Enright as its first witness on Wednesday, March 8. During her direct testimony, Ms. Enright testified to why she suspected Mr. Dunbar of stealing her car, their communications after it went missing, and her finding him in her car on December 20 and reporting her discovery to police. She identified photographs of the car taken on December 20, and testified that she never gave Mr. Dunbar permission to take her car on December 13 and never asked for his help in recovering it. She identified Mr. Dunbar's voice on the telephone recordings offered by the State and testified that she was known by the name "Tory," the name Mr. Dunbar used in the calls.
Defense counsel asked for a break before cross-examining Ms. Enright. Outside the presence of the jury, she made an offer of proof that Ms. Enright had signed a diversion agreement under penalty of perjury in which she represented, falsely, that she had no felony charges pending in Washington or elsewhere. The defense wished to use the information to challenge Ms. Enright's credibility under ER 608(b).
The State objected to what it characterized as an "ambush" but also suggested that "perhaps Mr. Mason should be here, Your Honor," observing that "we have law enforcement sitting here, and if [Ms. Enright] commits perjury or submits she commits perjury, she is subject to being arrested." RP at 268-69. The trial court recessed for the morning and directed the lawyers to contact either Mr. Mason or public defender Jeremy Schmidt, whom defense counsel believed might be representing Ms. Enright at that point. The court wanted Mr. Mason or Mr. Schmidt to confer with Ms. Enright and provide input to the court.
During the recess, Mr. Schmidt arrived and conferred with Ms. Enright. At the outset of the afternoon session he informed the trial court of the advice he had given her:
RP at 299 (emphasis added).
The trial court "invite[d] from the State any other suggestions the State might have." Id. The State continued to argue that if the court ruled that the diversion agreement was excluded, it would solve the problem. When the court granted defense counsel's request to address the court, she introduced the notion that if Mr. Schmidt advised Ms. Enright to invoke the Fifth Amendment in response to all of her questions, Mr. Dunbar would be denied his ability to confront her:
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