State v. Powell
| Decision Date | 30 April 2009 |
| Docket Number | No. 80535-1.,80535-1. |
| Citation | 206 P.3d 321,166 Wn.2d 73 |
| Parties | STATE of Washington, Petitioner, v. Jason Vincent POWELL, Respondent. |
| Court | Washington Supreme Court |
Clark County Prosecutor's Office, Tonya Rulli Riddell, Vancouver, WA, for Petitioner.
John A. Hays, Attorney at Law, Longview, WA, for Respondent.
¶ 1 A jury convicted Jason Vincent Powell for the attempted burglary of his ex-girlfriend's home. The Court of Appeals reversed the conviction based on the trial court's admission of evidence under ER 404(b) that Powell ingested methamphetamine prior to the attempted burglary to show his mental state. At trial, however, defense counsel initially condoned the testimony and later objected only to question the witness' credibility. We hold Powell failed to preserve his ER 404(b) objection for appeal and has failed to demonstrate any manifest constitutional error supporting reversal. We reverse the Court of Appeals and affirm Powell's conviction.
¶ 2 Powell and Amber Williams had an intermittent relationship for three and one-half years and had a son together named Zion. Three months before the attempted burglary, Powell told Williams he would kill her if she tried to keep him away from Zion. Williams "tried to laugh it off" but Powell reiterated, "[N]o, I will kill you if you ever try to keep Zion away from me." 1 Verbatim Report of Proceedings (Feb. 6, 2006) (1 VRP) at 47-48. A few weeks before the attempted burglary, Powell and Williams were sitting with two friends in Powell's living room. Powell cocked his gun and said someone was going to die. Williams tried to make light of the comment and replied, "[Y]eah, everybody dies some day." 1 VRP at 49. Powell replied, "[N]o, some ... sooner than others." Id. Williams felt scared after both incidents.
¶ 3 On the night of October 12, 2005, Powell and Williams had an argument over the phone while they were "on a break" in their relationship. 1 VRP at 46. At the time, Williams and her children lived with her parents who regarded Powell as an uninvited guest. During their quarrel, Williams informed Powell she did not want him around Zion at that time. She hung up on him and turned off her cell phone.
¶ 4 The following morning, Williams turned her cell phone back on. As she prepared for the day, Williams heard someone trying to open the front door "really quietly." 1 VRP at 52. Her 13-year-old son looked outside and said with a panicked look on his face, "[I]t's Jason." 1 VRP at 53. Williams' son said Powell was headed for the back of the house. Williams went to the back of the house to close the curtains in front of the sliding glass door. As she held the curtains shut, she could hear Powell trying to open the sliding glass door. She gathered up her children and locked herself in the bedroom. On her way to the bedroom, she called 911 to report Powell's presence. Moments before the police arrived, Williams heard Powell knock on the door.
¶ 5 Officer Jason Watson arrived at Williams' residence and first observed Powell at the front door slightly bent over looking like he was "working the mechanism." 1 VRP at 92. When Powell noticed the officer approaching, Powell's posture changed to "extremely rigid, staring one way and coming down the stairs very quickly with his arms barely moving at all." Id. Officer Watson addressed Powell loudly three times, but Powell did not acknowledge him and tried to walk past. Officer Watson reached out to take Powell's elbow and said, "[H]ey, we need to talk." 1 VRP at 95. Powell pulled away shouting, 1 VRP at 96. A tussle ensued in which Powell attempted to escape from Officer Watson. Eventually, Officer Watson subdued Powell and placed him in handcuffs. As Officer Watson put handcuffs on Powell, a loaded handgun fell out of Powell's shorts for which he did not have a concealed weapons permit. Powell was charged with one count of attempted burglary in the first degree with a firearm.
¶ 6 Williams observed the arrest from inside of the house. She noted Powell wore black cut-off pants with black socks, black shoes, a black beanie hat, and a camouflage-colored jacket. She testified Powell normally wore all black, but she had never seen him wear the camouflage jacket before.
¶ 7 Prior to trial, the prosecutor submitted Williams should be allowed to testify to three incidents occurring before the night in question: (1) Powell had been convicted of attempted unlawful imprisonment and fourth degree assault for strangling Williams in 2004; (2) Powell had threatened Williams in 2005; and (3) Williams believed Powell used drugs, possibly on the night in question. The prosecutor stated this testimony would be elicited only from Williams. In response to that proffered evidence, defense counsel said:
I don't want the word drug used anywhere in this trial. It's not a trial about drugs and I'd prefer—my problem is you say methamphetamines and drugs, he's going to jail. I don't want that to happen. I—it's not a trial about drugs. I want to keep that out in particular.
¶ 8 When defense counsel made this statement, the only testimony mentioned by the State was that of Williams. Subsequently, the State informed the court it also wished to call Powell's roommate, Greg Kincaid, who would testify he witnessed Powell ingest methamphetamine just before he left for Williams' home. In response, defense counsel stated:
And this Greg guy, I guess, can bring out that testimony. If in fact he was doing drugs with the Defendant the night before, he can bring ... that stuff out, I imagine. But the things that Greg said was he was-he told me he was going to get his son.
¶ 9 The trial court ruled Williams could not testify to the 2004 strangling incident. The court allowed the evidence of the July and October threats against Williams. The court further ruled the evidence of drug use should not be mentioned in opening statement, but it would examine the evidence of drug use during an offer of proof.
¶ 10 After opening statements, the prosecutor submitted the offers of proof for the testimonies of Williams and Kincaid. The court ruled on the offers of proof separately.
¶ 11 During Williams' offer of proof, the focus of the proffered testimony was on her general belief that Powell used drugs. The court ruled it would not allow Williams to testify that Powell had used drugs on the night in question because she had no personal knowledge. The court also ruled, under ER 404(b), testimony that Williams did not want Powell around her son because Powell had used drugs was inadmissible. The court reasoned the prejudicial value outweighed the probative value of the evidence.
¶ 12 After a lunch recess, in the second offer of proof, Kincaid testified he observed Powell with his friend, Andrew, from around 3:00 a.m. until 7:00 or 8:00 a.m. He testified he witnessed Powell use methamphetamine right before he left with Andrew and that Powell was acting unusually agitated. Kincaid also testified Powell was "upset `cause she was—I think they had an argument and he wanted to see his kid and she would—she wouldn't let him see him." 1 VRP at 34. The State sought to introduce the testimony regarding drug use under ER 404(b) to establish Powell's agitated mental state. Defense counsel did not offer expert testimony or object to the admission of the testimony based on the lack of expert testimony. Defense counsel's cross-examination focused on Kincaid's memory of the night, that Kincaid had left drug paraphernalia at Powell's house, and that Kincaid had told officers the drugs belonged to Powell when the officers were executing a search warrant on Powell's home. During argument, defense counsel contended:
I'd ask that you not include the in—the testimony because the motive in this case is so strong.
It's uncontroverted that they got a— they got a warrant—warrant which gave them permission to go over there. But when they went over there, the officer testifies that he put a—or he writes that he put a piece of paper in the door and then came back and his paper was—had been gone. It tells him somebody's been there. He went into the place, there's new groceries that weren't there the day before. Then he finds this Greg, the witness. And I'm sure inquiries were made and perhaps deals cut to clear himself.
1 VRP at 39. After the prosecutor explained there was no deal, the court ruled that the evidence was admissible:
Well, first of all, neither of these issues—arguments has anything to do with the admissibility of the evidence. In determining whether the evidence is admissible, it is—doesn't make any difference whether I personally believe the witness or not. So, arguing his credibility to me is not something that I need to have considered. What I have to determine is whether the pro[bative] value of the testimony outweighs its potential prejudicial effect.
This witness is willing to testify, as I understand it, that shortly before the Defendant went over to the residence of Ms. Williams, his mental state was somewhat incoherent, he apparently was acting in an unusual manner, and that he consumed a controlled substance just before he left.
The pro[bative] value of that is pretty strong, in my opinion, because apparently, that's the issue that we have here, is whether he intended to just go over and talk to her or whether he intended to commit some other crime. I don't—haven't heard any argument that its prejudicial effect is outweighed by its pro[bative] value and I wouldn't find that it was in this point. So I'm going to admit the testimony, as indicated by the witness.
It's permissible for you to question the witness about credibility, whether he thought he was going to get a deal or not. Permissible for you to bring up that in fact he wasn't offered any deal. That's all credibility issues and...
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