State v. Hart
| Decision Date | 26 November 2019 |
| Docket Number | 51698-5-II |
| Citation | 11 Wn.App.2d 1033 |
| Parties | STATE OF WASHINGTON, Respondent, v. KENNETH S. HART, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Kenneth Hart was convicted of two counts of domestic violence second degree assault and one count of felony harassment stemming from a single incident where he strangled his wife, hit her and threatened to kill her.
Hart appeals, arguing that the trial court erred when it held that the victim's medical records containing evidence of her bipolar diagnosis were inadmissible. He also contends that he received ineffective assistance of counsel because his attorney failed to ask him about the harassment charge during his testimony. He asserts that the trial court erred in delegating the imposition of his conditions of community custody to the Department of Corrections. Finally, Hart argues that the trial court violated his right against double jeopardy by dismissing one of his second degree assault convictions without prejudice, rather than vacating it.
We hold that the trial court did not err in excluding the medical records containing evidence of the victim's bipolar disorder because it correctly concluded that the risk of prejudice substantially outweighed their minimal probative value. Thus, Hart was not deprived of his constitutional rights to confrontation and to present a defense. We hold that Hart was not prejudiced by his counsel's failure to ask him about the harassment charge. The trial court did not err in delegating conditions of community custody to the Department because the delegation was authorized by statute. Finally, Hart's second conviction for domestic violence second degree assault should be vacated, rather than dismissed without prejudice.
We remand for correction of Hart's judgment and sentence but affirm in all other respects.
At the time of the relevant incident, Hart and the victim were married and had two sons together.
On the night of October 22, 2016, the couple argued. According to the victim, Hart told her to kill herself and then started punching her in the face. Later, after she said she would never kill herself, Hart told her that he would "have to do it for [her]" and began strangling her. Verbatim Report of Proceedings (VRP) (Vol. Ill) at 468. He strangled her a second time about 20 minutes later, this time pushing down on her throat with his forearm. The victim testified that during both strangling incidents she experienced tunnel vision, could not breathe or talk, and believed Hart was going to kill her. Hart had taken her phone so that she could not call the police. This went on all night, until sometime in the morning when Hart went into another room, leaving his wife in the bedroom. She escaped from the house with their sons, and ran to the neighbor's house to call the police. The police arrived, interviewed the victim, photographed her injuries, and arrested Hart. Hart was charged with two counts of domestic violence second degree assault for the two instances of strangling and one count of felony harassment for threatening to kill the victim.
Several weeks before the incident, the victim had been diagnosed with bipolar disorder and was undergoing mental health therapy and taking prescribed medications. Her medical records listed her symptoms, which included poor memory, aggression irritability, mood swings, impulsivity, and hypersexual behavior, among others. There were also physician's notes describing increased irrational and impulsive behavior. But those symptoms improved markedly with a change in medication in early October, about three weeks before the incident described above. The records did not say that the victim could not accurately perceive, remember, and report events other than one comment about her efforts to "piece together what happened during periods of risky behavior" before her medication was adjusted. VRP (Vol. I) at 138-39.
The State moved to exclude "any evidence of [the victim's] past or present mental health condition or medications" under ER 402 and ER 403. Clerk's Papers (CP) at 68 (emphasis omitted). Specifically, the State sought to exclude "any reference to the victim's mental health, including any supposed diagnoses, treatments, counseling sessions, or reasons for counseling." CP at 68.
The court granted the State's motion, reasoning that there was no basis in the records or evidence presented to conclude that either her bipolar disorder or her medications had prevented her from accurately perceiving, remembering, or reporting events. The court found the diagnosis and other health information "at best" "minimally probative" and "highly prejudicial." VRP (Vol. I) at 146.
Hart moved for a continuance so that an expert could review the victim's records and testify as to whether her mental health or medications at the time may have had an impact on her perceptions of the assault. The court granted the motion to continue.
At a subsequent hearing to again address the admissibility of the records, Hart's expert stated that the victim's medical records "strongly suggest[ed]" that she was suffering from "destructive and provocative interpersonal behavior" resulting from a manic phase of her bipolar disorder during the assault. VRP (Vol. II) at 205-06. According to the expert, this "indicated an altered state of mind ... at the time of the alleged assault." VRP (Vol. II) at 205-06. The expert opined that it "would therefore seem appropriate for the trier of fact to consider [this] in the deliberation regarding her credibility as a witness." VRP (Vol. II) at 205-06. The medical records reflect that as of October 1, 2016, about three weeks before the relevant incident, the victim was suffering from "hypo-manic symptoms," including poor memory. CP at 190-91, 194. Hart argued that given the expert opinion and the content of the medical records, if the victim testified about the alleged assaults, he should be permitted to impeach her using the records. The court confirmed with defense counsel that he was seeking only to use the medical records for impeachment.
After considering the expert's opinion, the trial court again ruled that Hart could not introduce the medical records. The court reasoned that although the records supported the bipolar diagnosis and contained a reference to poor memory upon intake, they did not adequately support the conclusion that the victim was suffering from manic symptoms at the time of the assault, nor did they establish that her perception of the assault or her ability to report it would have been affected.
The court disagreed with the expert's reading of the records as to the timing of her manic episode. Because her manic episode occurred in August and perhaps early September, with consistent improvement thereafter, the court found that "the probative value of the records and the information contained ... as a basis to question [the victim's] ability to properly perceive or remember events in October of 2016 is very, very limited." VRP (Vol. II) at 263.
The court explained that "at best, there's some potential small relevancy of that one record of memory, although there is no indication of how that would impact these particular events either." VRP (Vol. II) at 262. The court noted that the expert did not indicate that someone with bipolar disorder would be unable to properly perceive events or would have memory deficits that would prevent them from recalling events. Nor was there any indication that the prescription drugs the victim was taking would have impacted her ability to perceive events.
The trial court concluded that the records were minimally relevant but carried a high risk of prejudice because of the stigma associated with mental health issues. The prejudicial effect substantially outweighed the probative value of using the medical records as a basis for impeachment. The expert's opinion therefore did not alter the court's original ruling granting the State's motion in limine "excluding] reference to the information contained in the medical records." VRP (Vol. II) at 267-68.
At trial, the victim testified consistent with the facts described above. The court admitted pictures of her injuries and bruising. Witnesses who saw her on the morning after the incident also testified about her injuries, including black eyes.
During his testimony, Hart denied that he caused his wife's injuries, claiming that they were instead the result of consensual rough sex and deep tissue massage. Defense counsel did not elicit testimony from Hart about the alleged threat to kill his wife that was the basis for the harassment charge. But Hart did testify to an entirely different version of events, including testimony that he told his wife he wanted a divorce that night, and she responded that she was going to take the kids and make sure he never saw them again.
During closing argument, defense counsel acknowledged that he had "neglected" to ask Hart about the alleged threats related to the harassment charge, and argued to the jury that Hart's testimony should imply Hart's denial of that charge by virtue of his testimony describing a different version of events. VRP (Vol. V) at 898-99. Counsel explained that he had not wanted to interrupt the flow of Hart's testimony and wanted to keep the focus on the more serious charges facing him. Counsel further argued that Hart's general portrayal of the events in question, along with his denials of the other charges, sufficiently contradicted the State's version of events to serve as an implicit denial of the harassment charge.
The jury found Hart guilty on all three charges. At sentencing the State...
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