State v. Hudson
| Decision Date | 02 June 2009 |
| Docket Number | No. 36642-8-II.,36642-8-II. |
| Citation | 150 Wn. App. 646,208 P.3d 1236 |
| Parties | STATE of Washington, Respondent, v. Eugene HUDSON, Appellant. |
| Court | Washington Court of Appeals |
Michelle Bacon Adams, Attorney at Law, Port Orchard, WA, for Appellant.
Russell Duane Hauge, Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.
PART PUBLISHED OPINION
¶ 1 Eugene Hudson appeals his third degree rape conviction, arguing that the trial court improperly allowed two experts to opine as to his guilt. We agree and, therefore, reverse his conviction and remand for a new trial. Hudson raises other evidentiary issues; we address only those likely to arise on retrial.
¶ 2 One evening, Hudson and his wife,1 Nicole Tillis, went to the home of Jonathan and Lisa McHenry to socialize. Krystal Whitcher, another friend of Lisa McHenry and Tillis, was also there. The group consumed alcohol together for a couple hours, then went to a bar where they continued drinking until the bar closed. Several of the group went to Taco Bell for some food; Whitcher and Hudson may have flirted while they sat together in the back seat of the car. Afterwards, the group returned to the McHenry residence, and Lisa McHenry drove Whitcher home at about 3:00 a.m.
¶ 3 At about 4:00 a.m., Hudson drove to Whitcher's residence. He told Whitcher that "there was a lot of cops out" so he "didn't feel comfortable out on the road." Report of Proceedings (RP) at 365. She invited him in to watch television until he felt better. A vaginal and anal sexual encounter ensued on a futon in Whitcher's living room. Hudson eventually fell asleep on the futon until around 8:00 a.m., then left.
¶ 4 The next morning, Whitcher called Lisa McHenry and told her what had happened. Lisa McHenry drove Whitcher to the hospital for a sexual assault examination. Nora Mary Sullivan, a sexual assault nurse examiner (SANE), examined Whitcher and documented her findings in Whitcher's medical chart.
¶ 5 The State charged Hudson with three counts of rape. Count One was for second degree rape relating to the anal penetration. Counts Two and Three related to vaginal penetration, one for second degree rape and the other for third degree rape.
¶ 6 The State introduced testimony by two expert SANE witnesses. One was Sullivan, who had examined Whitcher. The other was Jolene Mae Culbertson, who was the clinical coordinator of the SANE program at the hospital and had prepared a summary report based on Sullivan's examination. Hudson objected to the use of two witnesses, arguing that their testimony would be cumulative under ER 403 because both witnesses would say the same thing. The trial court overruled the objection.
¶ 7 The State called Culbertson first. She testified that she had reviewed Sullivan's written recording of Whitcher's account of what happened. The prosecutor asked her to relate the history Whitcher had given; the defense objected on hearsay grounds. The trial court overruled the objection because Whitcher's statements to Sullivan fell within the medical diagnosis or treatment exception and Sullivan's written report fell within the medical business records exception. Culbertson then paraphrased Sullivan's reported history:
Krystal Whitcher reported that she had been out with friends. She went home. There was a knock on her door, and she opened the door. And it was the husband of a friend of hers. He said that he was uncomfortable because the police were following him, so he didn't feel comfortable driving and wanted to stay there. And she allowed him to stay there. She turned on the TV. He turned off the TV and pushed her down on a futon. And she started screaming. He said, And he attempted to penetrate her vaginally, and then turned her over and penetrated her anally. And then turned her back over and penetrated her vaginally. And the entire time she was screaming, And he said,
¶ 8 During cross examination, defense counsel called attention to certain variations between Culbertson's paraphrase and Sullivan's report. On redirect examination, the prosecutor asked Culbertson to read Sullivan's narrative verbatim. Hudson objected, but the trial court overruled the objection under the "rule of completeness." RP at 327. Culbertson read:
We all went out last night (friends) somebody came to my door about 4 a.m., it was my friend's husband. He said he was trying to drive home but the police were following him. So I said he could crash on the couch. I turned the TV on. He said turn it off and pulled me over close to him. I told him no, that I was friends with his wife. He pushed me down on my face on the futon. I started screaming and told him, no. I started screaming and he told me to just relax, that I'd be okay. It was hurting, and I screamed a lot. Then he turned me on my back and did it again. Then on my stomach so he could finish. I think he pulled out before he finished. He kept telling me to relax, that I'd be okay. I kept screaming. Afterwards I waited until I thought he was asleep because his legs were still on me. I was afraid. Then I went into my room and waited until he left this morning and called my friend.
Clerk's Papers (CP) at 327-28.
¶ 9 Because Culbertson had comprehensively testified regarding Sullivan's report, the defense renewed its motion to exclude Sullivan's testimony as cumulative. The trial court allowed the testimony because Sullivan had been the treating medical provider and could therefore testify about what she had actually observed. Later, the prosecutor clarified the differences between Sullivan's and Culbertson's testimony: Sullivan would testify from her examination about the details of Whitcher's injuries; Culbertson had (1) offered expert opinions based on the photographs Sullivan had taken and (2) Whitcher's account of the assault.
¶ 10 When the State asked Culbertson, "Are the injuries that you observed in these photographs consistent with Krystal Whitcher's report of nonconsensual sex?" Hudson objected, arguing that the question called for opinion testimony that invaded the jury's province. RP at 257. The trial court overruled the objection, relying on State v. Jones, 59 Wash.App. 744, 801 P.2d 263 (1990). Culbertson testified that her opinion "as to the nature and cause of [Whitcher's] injuries" was that they were "extensive injury related to nonconsensual sex." RP at 311.
¶ 11 Sullivan testified that she took colposcopic photographs of Whitcher's injuries and drew a "trauma-gram" of them. RP at 447. Vaginal lacerations ranged from 2.3 to 8 millimeters, which Sullivan characterized as "very significant" as well as "quite deep." RP at 476. Whitcher's anal lacerations ranged from 2.9 to 11 millimeters, which Sullivan testified "were very, very significant" and "would have been excruciatingly painful." RP at 477. There was also significant swelling around the anus caused by trauma.
¶ 12 Defense counsel objected when the State asked Sullivan, "Would you expect to see the type of injuries that you noted in Miss Whitcher in a consensual encounter?" RP at 484. The trial court overruled the objection, and Sullivan answered, "No." RP at 484. She also testified that in her SANE experience, it was not common to see the extent of injury that she saw in Whitcher. Sullivan concluded over objection that "this was a very traumatic nonconsensual . . . penetration." RP at 485.
¶ 13 The jury acquitted Hudson of Counts Two and Three and convicted him on Count One of the lesser included offense of third degree rape. The trial court sentenced Hudson to thirteen months' imprisonment.
¶ 14 Hudson challenges several of the trial court's evidentiary rulings. We review such rulings for an abuse of discretion. In re Pers. Restraint of Davis, 152 Wash.2d 647, 691, 101 P.3d 1 (2004). A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons, i.e., if the court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law. State v. Lord, 161 Wash.2d 276, 283-84, 165 P.3d 1251 (2007).
¶ 15 Hudson argues that Culbertson and Sullivan improperly opined that he was guilty when they testified that Whitcher's injuries were caused by nonconsensual sex. The State responds that the testimony related only to causation and was not an opinion as to Hudson's guilt.
¶ 16 An expert opinion is not objectionable merely because it "embraces an ultimate issue to be decided by the trier of fact." ER 704. But a witness may not offer an opinion as to the defendant's guilt, either by direct statement or by inference. State v. Montgomery, 163 Wash.2d 577, 591, 183 P.3d 267 (2008) (citing State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001) (plurality opinion)); State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987). Such an opinion violates the defendant's "inviolate" constitutional right to a jury trial, which vests in the jury "`the ultimate power to weigh the evidence and determine the facts.'" Montgomery, 163 Wash.2d at 590, 183 P.3d 267 (). Whether testimony constitutes an impermissible opinion about the defendant's guilt depends on the circumstances of the case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact. Montgomery, 163 Wash.2d at 591, 183 P.3d 267 (quoting Demery, 144 Wash.2d at 759, 30 P.3d 1278).
¶ 17 This case is similar to State v. Black, in which the Supreme Court reversed a rape conviction for improper opinion testimony on the...
To continue reading
Request your trial
-
State v. Winborne
...(3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact. State v. Hudson, 150 Wash. App. 646, 653, 208 P.3d 1236 (2009). Testimony in Tishawn Winborne’s trial came from police officers. A law enforcement officer’s improper opinion testimon......
-
City of Seattle v. Levesque
...thus violated his constitutional right to a fair trial, "we apply the constitutional harmless error standard." State v. Hudson, 150 Wash. App. 646, 656, 208 P.3d 1236 (2009). In a constitutional harmless error analysis, we presume prejudice. Hudson, 150 Wash. App. at 656, 208 P.3d 1236. A "......
-
State v. Tinajero
... ... Tinajero engaged in sexual intercourse with Ms. V., he ... admitted that element. A trial court abuses its discretion ... when it applies the wrong legal standard or bases its ruling ... on an erroneous view of the law. State v. Hudson, ... 150 Wn.App. 646, 652, 208 P.3d 1236 (2009). Since identity ... was not at issue, the trial court erred in relying on ... identity as a permissible purpose for admitting Ms. S.'s ... testimony ... Intent ... Mr ... Tinajero also ... ...
-
State v. Tinajero
...its discretion when it applies the wrong legal standard or bases its ruling on an erroneous view of the law. State v. Hudson, 150 Wn. App. 646, 652, 208 P.3d 1236 (2009). Since identity was not at issue, the trial court erred in relying on identity as a permissible purpose for admitting Ms.......