State v. Hudson, 70147-9-I
| Decision Date | 29 December 2014 |
| Docket Number | No. 70147-9-I,70147-9-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MARK CURTIS HUDSON, Appellant. |
UNPUBLISHED OPINION
TRICKEY, J. — Mark Hudson appeals his convictions for attempting to elude, domestic violence misdemeanor violations of a court order, and residential burglary. He raises several arguments, one of which challenges the trial court's admission of a subsequently reversed conviction for witness tampering. Following the United States Supreme Court's decision in Loper v. Beto, 405 U.S. 473, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972) and our decision in State v. White, 31 Wn. App. 655, 644 P.2d 693 (1982), we reverse Hudson's convictions, holding that the erroneous admission of Hudson's witness tampering conviction was not harmless error, and remand for retrial.
FACTS
Mark and Rebecca Hudson1 had been married for over 13 years. They have three children together. At some point in 2010, Hudson became unemployed and his relationship with Rebecca began to deteriorate.
Previous Charges against Hudson
In September 2010, Hudson allegedly attacked Rebecca with a knife. Rebecca called the police. The State charged Hudson with felony assault and felony harassment.State v. Hudson, noted at 179 Wn. App. 1002, 2014 WL 231925, at *1. The trial court entered a no-contact order prohibiting Hudson from contacting Rebecca.
From jail, while awaiting trial, Hudson made several telephone calls to Rebecca's telephone number. Hudson, 2014 WL 231925, at *1. During one call, Hudson asked the woman who answered to tell the prosecutor that the woman had relocated, and instructed her to refrain from answering telephone calls or responding to e-mails. Hudson, 2014 WL 231925, at *1. According to Rebecca, as a result of Hudson's urging, she did not show up in court to testify against Hudson. The trial court dismissed the charges without prejudice because Rebecca was unavailable to testify as a witness. Hudson, 2014 WL 231925, at*1.
In April 2012, the State charged Hudson by amended information with tampering with a witness, domestic violence misdemeanor violation of a court order, and second degree assault. Hudson, 2014 WL 231925, at *1. The assault charge was the same alleged assault that took place in September 2010. The other charges were also for acts occurring in 2010. Rebecca appeared as a witness at that trial, but gave false testimony. Hudson, 2014 WL 231925, at *1-2. Hudson had coached Rebecca on her testimony and she testified accordingly. The jury convicted Hudson of witness tampering and violation of a court order. Hudson, 2014 WL 231925, at *2.
Charges in Present Case
On April 27, 2012, the trial court entered another protection order, identifying Rebecca as the protected party.
Rebecca testified that on May 29, 2012, she and Hudson were living together. This formed the basis for count III, domestic violence misdemeanor violation of the April 2012 no-contact order.
Hudson was incarcerated from May 29, 2012 until June 17, 2012. Rebecca testified that on June 17, 2012, the day Hudson was released, she drove to the airport to pick him up. The State charged this act as count IV, domestic violence misdemeanor violation of the April 2012 no-contact order.
According to Rebecca's testimony, later that day, Hudson accused her of changing her passwords to all of her financial and personal accounts. Rebecca testified that Hudson struck her on the head, pushed her on the bed, pinned her down with his knees, and struck her again. Rebecca testified that she made a comment that further angered him, and he obtained a belt and tried to place it around her neck. Shortly after this incident, according to Rebecca, she observed redness on her neck and shoulders, and her ear began to ring. The alleged act of domestic violence this day was the basis for count I, domestic violence felony violation of the April 2012 no-contact order.
The next day, on June 18, Rebecca notified her sister about Hudson's purported act of domestic violence on the previous day. Rebecca's sister then called the police, requesting that they perform a welfare check on Rebecca.
On June 19, 2012, Seattle Police Officer Todd Jones and his partner drove to Rebecca's residence on Bangor Street. Officer Jones observed a green BMW car parked in the driveway. He discovered that the license plate was registered to Hudson. Officer Jones also learned of the existence of the April 2012 no-contact order.
The officers then knocked on the front door. Hudson answered the door and identified himself. Officer Jones asked if Rebecca was inside the house. Hudson responded that she was not inside and that he had not seen her. Officer Jones returned to his car, viewed a photograph of Hudson, and confirmed that Hudson was the man with whom he had just spoken.
Later that morning, Officer Jones called Rebecca. After speaking with her, he returned to her residence on Bangor Street to arrest Hudson for felony violation of a no-contact order. When Officer Jones arrived at the residence for the second time, the BMW was no longer there and no one answered the door. Officer Jones contacted Rebecca, who told him that she was walking toward her house. Officer Jones soon located Rebecca on a street close to her house. As he approached Rebecca, he observed Hudson's green BMW driving toward him in the opposite lane of travel.
As the BMW passed him, Officer Jones saw Hudson driving the vehicle and noticed the license plate matched the same one he had previously identified. Officer Jones testified that as he passed Hudson, he was unable to determine whether anyone else was riding in the car with him. Rebecca also was unable to see who else was in the car.
Officer Jones made a U-turn and signaled his lights and siren for Hudson to stop. Traveling at a high rate of speed, Hudson ran a stop sign, pulled into the oncoming lane of traffic, and sped away. Officer Jones lost sight of Hudson's vehicle. On these facts, the State charged Hudson with count II, attempting to elude a pursuing police vehicle. A video of the pursuit was admitted into evidence and played for the jury at trial.
Officer Jones drove back to meet with Rebecca. When he approached her, she was speaking on her cellular telephone with Hudson. Rebecca told Officer Jones that their three-year-old daughter was in the car with Hudson. The State charged this fact as an enhancement to count II.
Officer Jones escorted Rebecca to her residence. Rebecca provided a statement to the officers. Throughout the interview, Rebeca's cell phone rang approximately eighttimes. Officer Jones testified that he saw Hudson's name appear on Rebecca's cell phone when it rang. At trial, Rebecca confirmed that it was Hudson who was calling her.
Officer Jones noticed, and took photographs of, the swelling and redness on Rebecca's face. Rebecca also reported to Officer Jones that she had pain and bruising in her upper chest area. She told Officer Jones that Hudson had assaulted her on June 17. The photographs were later admitted as evidence at trial.
After Rebecca gave Officer Jones her statement, one of the officers drove Rebecca to a shopping mall. Rebecca then called Hudson to pick her up. While in the car, Hudson told Rebecca that they could not return to their residence, so he drove Rebecca to a motel. Later that evening, Hudson drove Rebecca to the hospital where she worked. He took Rebecca's keys to her house and the debit card to Rebecca's individual account. They arranged to have Hudson pick Rebecca up from the hospital when she finished working. Subsequently, during Rebecca's shift, Hudson sent her a text message indicating he was at the hospital. Rebecca called 911.
Deputy Chris Pelczar responded to Rebecca's call and arrived at the hospital at approximately 11:30 p.m. Deputy Mary Syson spoke with Rebecca, learned that Hudson had contacted her and was present at the hospital, and confirmed the existence of the no-contact order. Deputy Pelczar arrested Hudson. The acts that day formed the basis for count V, domestic violence misdemeanor violation of the April 2012 court order.
On June 22, 2012, the State filed its initial information in the present case, charging Hudson with counts I through V, as described above.
On July 3, 2012, the superior court issued another domestic violence no-contact order against Hudson, naming Rebecca as the protected party.
On July 9, 2012, Hudson's mother posted $500,000 cash bail and Hudson was released from jail.
Police officers installed a surveillance camera at the Bangor Street residence, where Rebecca was living, showing the front driveway and front door of the residence. The camera enabled the officers to view events as they occurred.
On August 14, 2012, Officer Christopher Johnson was watching the surveillance video from his office and noticed a motor scooter parked in the driveway where Rebecca usually parked her car. Officer Johnson discovered that the license plate was registered to Hudson. While viewing the screen, he saw Hudson dismount from the motor scooter and enter the residence through the front door. Officer Johnson alerted an on-duty deputy to park his patrol car near the house and stop the motor scooter. While en route to the residence, Officer Johnson was able to continue watching the live surveilled scene from his laptop computer. He saw Hudson emerge from the house and walk toward the motor scooter. Officer Johnson later made a screen print of the video, which was admitted as an exhibit at trial. The video footage of Hudson's entrance and exit of the residence was also admitted and played for the jury at trial.
Soon another deputy stopped the motor scooter and Hudson was identified as the individual on the vehicle. Hudson was detained approximately one quarter-mile from the Bangor Street residence.
From the incidents that day, August 14, 2012, the State by second amended information added count VI, residential burglary, and count VII, domestic violence...
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