State v. Ray
| Decision Date | 23 June 2020 |
| Docket Number | No. 52464-3-II,52464-3-II |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Kevin Ray CASE, Appellant. |
Jodi R. Backlund, Backlund & Mistry, Po Box 6490, Olympia, WA, 98507-6490, for Appellant.
Jason Fielding Walker, Grays Harbor Prosecuting Attorney, 102 W Broadway Ave., Rm 102, Montesano, WA, 98563-3621, for Respondent.
PUBLISHED OPINION
Glasgow, J. ¶ 1 A jury found Kevin Ray Case guilty of fourth degree assault and harassment with domestic violence findings on both counts for an incident involving his girlfriend, Cindy Rothwell. Rothwell made a written, sworn statement to police shortly after the incident alleging that Case had hit, strangled, and threatened to kill her.
¶ 2 At trial, Rothwell recanted her allegations on the witness stand. Defense counsel asked Rothwell if she felt pressured or threatened regarding her testimony, the State objected, and the trial court sustained the objection. But the trial court allowed her to testify that she was not afraid of Case and fear was not influencing her testimony at trial. The State then called a mental health counselor, Jason Cain, as an expert witness, who testified that as a general matter it is somewhat common for survivors of domestic violence to later recant or minimize their allegations.
¶ 3 Case appeals, arguing that the trial court's limitation on his cross-examination of Rothwell violated his right of confrontation and right to present a defense under the Sixth Amendment to the United States Constitution. He also argues that Cain's testimony constituted an improper comment on Rothwell's credibility, violating Case's right to a jury trial. He further argues that he received ineffective assistance of counsel for counsel's failure to object to Cain's testimony.
¶ 4 We hold that although the trial court abused its discretion in limiting Case's cross-examination of Rothwell, this did not rise to the level of a violation of Case's Sixth Amendment rights and the error was harmless. We also hold that Cain's testimony was not improper and, therefore, defense counsel was not ineffective for failing to object.
¶ 5 We affirm.
FACTS
¶ 6 One morning, Rothwell's daughter, Natasha, received a text message from Rothwell asking her to call 911 and send police to Rothwell's house. Natasha called 911 and then went to check on her mother.
¶ 7 Aberdeen Police Officer Jon Hudson was the first officer on the scene after Natasha's call. Hudson heard a male voice yelling, and through a window he could see Case standing over Rothwell yelling at her. Hudson could not make out what Case was saying, but he understood that "there was a situation that needed to be interrupted" because Rothwell was "cowering" and "curled up" in a fetal position. Verbatim Report of Proceedings (VRP) (July 17, 2018) at 42-44. Hudson announced himself. Case briefly disappeared into another room. He returned and opened the door, removing a folded pocket knife from his pocket and placing it on a dresser.
¶ 8 While Hudson spoke with Case, Aberdeen Police Officer Ron Bradbury arrived and went inside to speak to Rothwell. Bradbury described Rothwell as "relieved" as she talked with him. VRP (July 17, 2018) at 33. Following this conversation, the police arrested Case.
¶ 9 Hudson remained at the house to investigate the scene and take Rothwell's statement. Hudson noticed possible injuries on Rothwell's arm, neck, head, and foot, which another officer photographed. Rothwell was upset and crying during the interview, but she was cooperative and forthcoming about what happened. Rothwell reported that Case had gotten angry when she did not call him "daddy." VRP (July 18, 2018) at 205-06. He entered her bedroom by ripping down the curtain that served as a doorway. Rothwell reported that Case attacked her, at various points hitting her with her cane, strangling her, and throwing her to the floor. She told Hudson that Case threatened to kill her, he threatened her with a pocket knife, and she believed her life was in danger.
¶ 10 Rothwell signed a written statement under oath reflecting what she told Hudson. Based in part on this statement, the State charged Case with domestic violence second degree assault, domestic violence felony harassment, and domestic violence third degree malicious mischief.
¶ 11 At trial, the testimony of the responding officers and Natasha was consistent with the facts as described above. The pictures of Rothwell's injuries were admitted as exhibits.
¶ 12 Rothwell testified that she could not remember the incident. She said that she did not remember texting Natasha for help and she did not remember her conversations with the police. She said that reading the statement she gave to police would not help her remember. When the State presented her with a copy of her statement, she said that she was having trouble reading it. The trial court then gave the State permission to treat Rothwell as a hostile witness.
¶ 13 The State asked Rothwell if she remembered Case getting angry when she refused to call him "daddy," ripping down the bedroom curtain, strangling her, threatening to kill her while holding an open pocket knife, pushing her down, smashing her jar of marbles, and hitting her with her walking cane. VRP (July 17, 2018) at 108-11. Rothwell either denied that these things occurred or said she did not remember them happening. She also testified that she did not remember giving a written statement to Hudson, although she acknowledged that the statement bore her signature.
¶ 14 During cross-examination, over the State's objection, Rothwell stated that she had reservations about testifying. The following exchange occurred:
VRP (July 17, 2018) at 158-59.
¶ 15 After Rothwell's testimony, Hudson summarized Rothwell's sworn statement from the day of the incident for the jury, including that Case attacked her, hit her with a cane, and strangled her.
¶ 16 Cain, a mental health counselor, then testified generally that victims of domestic violence often respond in unpredictable ways. Cain explained that it is "somewhat common" for survivors of domestic violence to recant their allegations of abuse and "very common" for them to minimize the abuse. VRP (July 18, 2018) at 218-19. They can even forget episodes of abuse altogether as a result of trauma. Cain explained that survivors generally might display these responses as a result of love for, dependency on, or fear of the perpetrator, but there are many other possible reasons to explain counterintuitive victim behavior.
¶ 17 Cain emphasized that he was speaking in general terms. He had not spoken with any of the parties in this case, he would not provide any opinions about any person involved in this case, and he had intentionally kept himself ignorant of the facts of this case. Case did not object during this portion of Cain's testimony.
¶ 18 During closing argument, without objection, the State read the statement Rothwell gave to police that had been admitted as an exhibit. The State relied on Cain's testimony to argue to the jury, over Case's objection, that it should believe the statement Rothwell gave to the police rather than her testimony at trial.
¶ 19 During deliberations, the jury sent a note to the court asking for Case's criminal history and whether police had ever responded to any prior incidents involving Case and Rothwell. The court responded simply that the jury had been provided with all the evidence that had been admitted.
¶ 20 The jury found Case not guilty of third degree malicious mischief and second degree assault, and found him guilty of the lesser included charge of fourth degree assault, as well as harassment. The jury also made a special finding that Case and Rothwell were family or household members during the commission of his crimes.
¶ 21 Case appeals his convictions, arguing that the trial court's limitation on his cross-examination of Rothwell violated his right of confrontation, that Cain's testimony constituted an improper comment on Rothwell's credibility in violation of Case's right to a jury trial, and that defense counsel's lack of objection to this testimony constituted ineffective assistance of counsel.
ANALYSIS
¶ 22 Case argues that the trial court violated his rights to confrontation and to present a defense by limiting his cross-examination of Rothwell. We hold that the trial court abused its discretion in limiting the cross-examination, but this did not rise to the level of a violation of Case's Sixth Amendment rights. In addition, the evidentiary error was harmless.
¶ 23 Criminal defendants have a constitutional right to confront and cross-examine adverse witnesses and to present their defense. U.S. CONST. , amends. V, VI, XIV ; WASH. CONST. art. I, §§ 3, 22. In State v. Arndt , the Washington Supreme Court reiterated the two-part analysis for determining whether the exclusion of evidence violates a defendant's constitutional...
To continue reading
Request your trial
-
State v. Harmon
...of guilt. State v. Thach, 126 Wn.App. 297, 313, 106 P.3d 782 (2005), overruled on other grounds by State v. Case, 13 Wn.App. 2d 657, 466 P.3d 799 (2020). Based on the same factors under which I conclude that Oliver Harmon suffered prejudice because of prosecutorial misconduct, I find, under......
- State v. Parker
- State v. Luna Huezo
-
State v. Weaver
...court's evidentiary error was harmless, applying the nonconstitutional harmless error standard." State v. Case, 13 Wn.App. 2d 657, 670, 466 P.3d 799 (2020). The nonconstitutional harmless error test requires the defendant to "show a reasonable probability that, absent the error, the outcome......