State v. Jackson
| Decision Date | 10 February 2015 |
| Docket Number | 45115-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent. v. MICHAEL T. JACKSON, Appellant. |
UNPUBLISHED OPINION
Michael Jackson appeals his jury trial conviction of assault in the second degree. He argues that the court violated his Confrontation Clause rights as well as the evidentiary rules by admitting a hospital record containing statements from non-testifying treatment personnel; the trial court abused its discretion by continuing the trial beyond the time for trial period; the trial court erroneously refused to instruct the jury on the lesser included offense of assault in the fourth degree; the prosecutor committed misconduct in his closing argument; counsel was ineffective by failing to adequately argue the Confrontation Clause issue; and the trial court erred by ordering Jackson to pay costs. We accept the State's concession on the last issue and remand with instructions to vacate the domestic violence assessment costs and the contributions to the expert witness fund and special assault unit. In all other respects, we affirm.
Alexandria Siefert, while seated with her fiance in his car, observed Jackson attempting to push Amber L. Lindsey into traffic. Jackson chased Lindsey across the street. He caught up to her, grabbed her by the hair, bashed her face against a telephone pole, and then choked her with both hands. Lindsey entered Siefert's fiance's car after Siefert's fiance opened the car door. Jackson grabbed Lindsey's hair and tried to pull her from the car. Siefert's fiance began to drive away, and Jackson was momentarily dragged along before he released Lindsey's hair. Jackson yelled obscenities at the departing car.
Immediately thereafter, Lindsey was crying and shaking and yelling Report of Proceedings (RP) (June 5, 2013) at 447. "[T]here was a lot of blood everywhere." RP (June 5, 2013) at 447. Siefert and her fiance took Lindsey to the hospital.
At the hospital, Lindsey told a triage nurse that '"My ex boyfriend (Michael) just beat me up on the side of the road.'" Ex. 12A, at 104.[1] Lindsey added that "she was pushed into a wooden pole hitting the back of her head he tried to strangle her, pulled her hair and '[p]ushed my head into stuff.'" Ex. 12A, at 105. The triage nurse did not testify.
Dr Timothy Dahlgren examined Lindsey, who told him that her "exboyfriend had grabbed her and pushed her to the ground such that she struck the back of her head on the ground" and that "he pushed her face against the hinge of the car or against the car, which is the part that caused the laceration." RP (June 5, 2013) at 374. Dr Dahlgren testified that he needed Lindsey's information about her injuries to help determine if Lindsey could safely leave the hospital, or if Lindsey needed "access to help to protect them in the future." RP (June 5, 2013) at 375.
Dr Dahlgren sutured the three-centimeter laceration Lindsey suffered from the assault. Dr. Dahlgren testified that based on his experience, if one looked closely enough, "there would always be a scar" from such a suturing. RP (June 5, 2013) at 377. But Dr. Dahlgren testified on cross-examination that he had not seen Lindsey since treating her, and had no way of knowing what kind of a scar she might have.
Dr. Dahlgren also referred Lindsey to a social worker. Lindsey told the social worker that Jackson had "hit her in the face/head and hit her head against a street sign or pole." Ex. 12A, at 111. The social worker referred Lindsey's case to law enforcement for "possible abuse/neglect/violence." Ex. 12A, at 110. The social worker did not testify.
Officer Jonathan Meador met briefly with Lindsey. He observed the large cut on her forehead and her ten stitches. He then located Jackson and spoke with him. Jackson gave inconsistent accounts of what happened. First, Jackson claimed that he had not seen Lindsey at all that day. Then, Jackson claimed in his written statement that he and Lindsey had been going to do laundry when Lindsey stopped to speak with an acquaintance in a car, and bumped her head on the doorframe.
The State charged Jackson with assault in the second degree with a domestic violence enhancement.[2]
Jackson's arraignment occurred on February 20, 2013, and trial was set for April 15, 2013. On April 11, 2013, the State requested a three-week continuance because Siefert was going to be working in Montana until May 6, 2013. Jackson objected on the grounds that Siefert was not a necessary witness because she was merely a passerby. The trial court disagreed, finding good cause to continue the trial to May 5, thus extending the time for trial deadline to June 5. See CrR 3.3(b)(5).
On May 6, the State moved for a second continuance because Officer Meador would be unavailable until the end of May because of out-of-state military training. Again Jackson objected, requesting a "discussion ... to find out whether or not this could have been avoided." RP (May 6, 2013) at 5. The trial court rejected Jackson's argument and continued the trial to June 3. Trial commenced on that date, within the time for trial deadline.
The State relied on the testimony of Dr. Dahlgren, Siefert and Officer Meador. Lindsey, the triage nurse, and the social worker to whom Lindsey spoke did not testify. Over Jackson's objection, the State introduced, and the court admitted, a hospital record that contained the triage nurse's and social worker's notes. Jackson did not testify and he raised a defense of general denial.
At trial, Jackson proposed a jury instruction on the inferior degree offense of assault in the fourth degree. He argued that no evidence existed to show that Lindsey's injury was "substantial." RP (June 5, 2013) at 484. The trial court rejected the instruction, ruling that the defense failed to present evidence "affirmatively establish[ing] the defendant's theory of the case." RP (June 5, 2013) at 485.
During closing arguments, the prosecutor addressed Lindsey's failure to testify, telling the jury that it "heard her voice" through Siefert's and Dr. Dahlgren's testimony.[3] RP (Jun. 6, 2013) at 513. The prosecutor further added that victims of domestic violence in general need to be heard:
One of the jurors asked me during voir dire, you know, if the complaining witness of a crime did not testify, why would we be in court? You know, why would we be here? Okay. Well, the answer is because victims of domestic violence need a voice. They do. Even when they're not potentially strong enough to stand up on their own, they need someone to stand up for them. And that's why we're here today. You didn't hear from the victim, but you did hear her voice.
RP (June 6, 2013) at 527-28. The prosecutor also explained the concept of reasonable doubt to the jury using the example of knowing that the world is round:
And we all agree that no one had ever been to space, no one had actually observed the earth being round. But we had a common sense appreciation of the fact. We all agreed that because of that, we were satisfied beyond a reasonable doubt that the earth is round. All right. That's how you need to think about the proof in this case, having a common sense appreciation of the facts.
RP (June 6, 2013) at 515. The prosecutor further argued that "trying to concoct a scenario where the defendant did not commit this crime would be as unrealistic as trying to concoct a scenario where I am not an attorney." RP (June 6, 2013) at 567. Jackson did not object to these statements.
In rebuttal, the prosecutor argued that Jackson's closing argument left him "at a loss for words." RP (June 6, 2013) at 563. Jackson timely objected to this statement, but the court overruled the objection and the prosecutor continued to contradict Jackson's closing argument that implied Lindsey and Siefert had been "reckless." RP (June 6, 2013) at 564. The prosecutor told the jury that "[f]or someone to sit here and tell you that the victim was reckless in this crime . . . or that the people who helped her were reckless, I hope that leaves you at a loss for words as well." RP (June 6, 2013) at 565.
The jury convicted Jackson of assault in the second degree, but hung on the issue of whether Jackson and Lindsey had been members of the same family or household. At sentencing, the court ordered Jackson to pay $1, 135 in fees for his court-appointed attorney, a $100 domestic violence assessment, a $100 contribution to the Kitsap County expert witness fund, and a $500 contribution to the Kitsap County special assault unit. Jackson appealed his conviction.
Jackson argues that the trial court violated ER 802 and his Sixth and Fourteenth Amendment rights to confront adverse witnesses when it admitted the notes of the nurse and social worker who treated Lindsey. The State argues that the court properly admitted the notes because they were not testimonial and they fell within the business records exception to the hearsay rule. We agree with the State and uphold the trial court.
Jackson argues that the nurse's and social worker's notes constituted inadmissible hearsay. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). Hearsay is not admissible "except as provided by these rules, by other court rules, or by statute." ER 802.
One exception to hearsay includes statements made for purposes of medical diagnosis or treatment. ER 803(a)(4). The availability of the declarant is immaterial to the admission of these statements. ER 803(a)(4). In...
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