State v. Putman

• Decision Date: 22 February 2022
• Docket Number: 81621-7-I
• Parties: STATE of Washington, Respondent, v. David M. PUTMAN, Appellant.
• Court: Washington Court of Appeals

504 P.3d 868

STATE of Washington, Respondent,

v.David M. PUTMAN, Appellant.

No. 81621-7-I

Court of Appeals of Washington, Division 1.

FILED February 22, 2022

Pllc Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98122, Casey Grannis, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION (IN PART)

Verellen, J. ¶ 1 In Matter of Lui,¹ our Supreme Court explained that a police officer can testify about statements made in an interrogation, including statements commenting on a witness's credibility, if the testimony provides context for the interrogation.

¶ 2 David Putman was convicted on three counts of first degree child rape, one count of first degree child molestation, and one count of second degree child molestation, all for crimes committed against his daughter, A.P. Putman argues retrial is required because the trial court admitted a recording and transcript of his police interrogation during which officers asked him whether A.P. was lying about his predations. The jury heard these questions only as part of the interrogation itself and for the clear purpose of understanding the contradictory statements Putman made during the interrogation. The court did not abuse its discretion by admitting the evidence.

¶ 3 Putman also contends retrial is required because the court declined a pretrial subpoena request under CrR 4.7(d). Because the request is properly evaluated under CrR 4.7(e) and he fails to show the court abused the discretion conferred by that rule, retrial is not required.

¶ 4 However, resentencing is required for all convictions because the court miscalculated Putman's sentencing score and applied the incorrect version of the Sentencing Reform Act (SRA), chapter 9.94A RCW.

¶ 5 In the unpublished portion of this opinion, we address Putman's contention that retrial is required because the court concluded ER 410 did not prohibit him from being impeached with statements he made to a sexual deviancy evaluator during plea negotiations. Because he fails to demonstrate prejudice from the court's decision, retrial is not required. We also address Putman's numerous alleged errors in his statement of additional grounds. None warrant relief.

¶ 6 Therefore, we affirm Putman's convictions, reverse his sentence, and remand for resentencing in accord with this opinion.

FACTS

¶ 7 In the fall of 2016, Putman and his then-wife Julie² were having frequent, serious arguments about their finances, and he raised the possibility of ending their marriage. Their son Patrick spoke with his then 23-year-old younger sister A.P. about hiring a marriage counselor. A.P. explained she had no interest in saving the marriage because her father had sexually assaulted her for years. She revealed that Putman regularly molested and raped her. Many rapes occurred in Putman's home office.

¶ 8 Over the coming weeks, A.P. disclosed Putman's predations to her cousin Michael Griffith and to her other siblings. On October 28, they told Julie what Putman had done. Julie was shocked. After Putman came home later that night, they confronted him with A.P.’s accusations. When accused of molesting A.P. for "her whole childhood," he responded, "I'm sorry."³ Putman admitted he remembered one incident of oral sex.

¶ 9 At Julie's insistence, Putman moved out of their house. He sent a series of text messages to Julie taking the blame and admitting he molested A.P. Putman went to live with his sister, Beverly Mullbock. Putman admitted to Mullbock that he had molested A.P. for many years.

¶ 10 A.P. and her mother went to the Maple Valley police station, and A.P. reported what her father had done. A few days later, Putman turned himself in to the police, and he was interviewed at the station by Detectives Marylisa Priebe-Olson and John Hawkins. He was initially charged with three counts of first degree child rape. The State eventually charged him with three counts of first degree child rape and one count of first degree child molestation, allegedly committed between April 1993 and April 2005, and one count of second degree child molestation, allegedly committed between April 1993 and April 2007.

¶ 11 Putman's first defense counsel, Justin Wolfe, represented him through the initial stages of discovery and plea negotiations. As part of plea negotiations, Putman agreed to a sexual deviancy evaluation, and Wolfe, after consulting Putman, agreed the evaluation could be used for impeachment at trial if Putman testified. The State and A.P. opposed any sentencing alternative, and the parties did not reach a plea agreement.

¶ 12 In March of 2019, Putman discharged Wolfe and retained defense attorney Peter Geisness. The court granted a seven-month continuance to let Geisness prepare for trial and complete the trials already on his schedule. As part of Geisness's trial preparation, he asked the State for new photos of the home office in Julie's house where A.P. alleged most of the rapes occurred. The State disclosed the 2016 police investigation photos of the office to Putman, and it conveyed the request to Julie. She provided new photos.

¶ 13 A few weeks before trial, defense counsel moved under CrR 4.7 for a subpoena requiring that Julie let defense counsel and a defense investigator take additional photos in her home. The court found the existing photos sufficient to let Putman argue his defense and denied the request. The court also held a CrR 3.5 hearing to determine the admissibility of Putman's police interview. Putman moved to redact an exchange with Detective Priebe-Olson asking Putman whether he believed A.P. was lying. The court denied the motion and admitted the interview.

¶ 14 During trial, A.P., Julie, Patrick, Griffith, and Mullbock testified. They each recounted Putman's admissions, and A.P. testified in detail about Putman's numerous rapes and molestations throughout her childhood. The detectives who interviewed A.P. and Putman testified as well, and the State played the police interview. After the State rested, Putman moved under ER 410 to prevent the State from impeaching him based upon his statements to the sexual deviancy evaluator. The court denied the motion, and Putman chose to not testify. The jury found Putman guilty on all charges.

¶ 15 The court calculated Putman's offender score to include two simultaneous convictions from 1981 as separate points. It relied solely on the 2005 version of the SRA at sentencing.

¶ 16 Putman appeals.

ANALYSIS

I. Police Interrogation Opinion Testimony

¶ 17 We review a decision to admit a police officer's statements from an interrogation for abuse of discretion.⁴ Putman contends the court abused its discretion by admitting improper opinion testimony through portions of a police interview where detectives asked Putman if A.P. was lying. The State argues the detectives’ questions were not opinion testimony because they were made during an interrogation.⁵

¶ 18 Lui controls this analysis. In Lui, the defendant alleged defense counsel was ineffective for, among other reasons, failing to object when two detectives testified they believed he had lied during police interviews.⁶ Citing the lead opinion from State v. Demery,⁷ the Lui court explained that while "[p]olice officers are generally not permitted to testify about a defendant's veracity," officers can "repeat statements made during an interrogation accusing a defendant of lying if such testimony provides context for the interrogation."⁸

¶ 19 In Lui, two detectives testified. The court reasoned that one detective's testimony did not opine about the defendant's honesty because it referred to inconsistencies between earlier interviews and the police file, explaining the reason for her interview.⁹ Thus, there was no reason for defense counsel to object. The other detective's testimony was objectionable, however, because she implied a belief that the defendant was guilty.¹⁰ But the court concluded defense counsel was not deficient for failing to object to the second detective's testimony because the absence of an objection was reasonable.¹¹

¶ 20 Putman argues the Lui court misapplied the context of the interview rule from Demery, explaining it was supported by only a plurality of the Demery court, and the concurrence sided with the dissent against it.¹² Putman's position is unavailing. Although Demery was a split decision with a four-justice plurality opinion and a lone concurrence, the Lui court merely construed the plurality and concurring opinions as adopting the context of the interview rule. This is a reasonable position and accords with the presumption against overruling precedent sub silentio.¹³ Putman can disagree with the Lui court's construction of Demery, but we are bound by it.¹⁴

¶ 21 Putman argues we should not follow Lui because its application of the context of the interview rule was dicta.¹⁵ " ‘Statements in a case that do not relate to an issue before the court and are unnecessary to decide the case constitute obiter dictum, and need not be followed.’ "¹⁶ The Lui court was considering whether defense counsel should have objected, requiring analysis of whether each detective's testimony was objectionable. Adopting the context of the interview rule was essential to decide the issue before it. The analysis in Lui was not dicta.

¶ 22 Here, the State played an approximately one-hour interview that two detectives conducted with Putman. The jury heard them ask Putman twice whether A.P. was lying. The issue is whether the officers’ questions about A.P. lying were improper opinion testimony when the jury heard them only within the interrogation itself. The result depends on a detailed review of the...