[No. 64726-1-I. Division One. April 4, 2011.]
January 19, 2011, Oral Argument
Christopher Gibson (of Nielsen, Broman & Koch PLLC), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Brian M. McDonald, Deputy, for respondent.
Author: Anne Ellington, J.
We concur: Marlin Appelwick, J., Ronald Cox, J.Anne Ellington
¶1 ELLINGTON, J. -- Under State v. Bashaw, it is manifest constitutional error to instruct a jury that it must be unanimous in order to find the State failed to prove either an aggravating factor or the facts supporting a sentencing enhancement. BACKGROUND ¶2 The charges in this case arose from an incident in June 2009. George Ryan and Evette White had been engaged in a long and tumultuous relationship marked by repeated breakups and numerous reports to police of domestic violence. On this occasion, Ryan had been drinking. He was talking with White as he toyed with a knife. When White indicated she wished to end their relationship, Ryan pointed the knife at her, bringing it within a few inches of her face, and threatened to cut and to kill her. He told her their two daughters would not have a mother. ¶3 Instead, Ryan accidentally cut his own leg and then left the house. White immediately locked the door, hid in another room and called police, who arrived in seconds. ¶4 Based on information from White, officers found Ryan laying under a tarp in a nearby vacant lot. He appeared intoxicated and had a cut on his leg. He claimed he had not been involved in any incident and had not been in the house for three days. During a search, officers found the knife on Ryan's person. ¶5 The State charged Ryan with second degree assault and felony harassment. The State alleged two aggravating circumstances: that the offense involved domestic violence and there was evidence of a pattern of abuse manifested by multiple incidents over a prolonged period. In addition, the State alleged Ryan committed the felony harassment offense while armed with a deadly weapon. ¶6 The jury found Ryan guilty as charged. The court imposed exceptional sentences of 70 months on the second degree assault conviction and 60 months on the felony harassment conviction. Ryan appeals, challenging the propriety of the jury instructions on the special verdicts for sentencing and the exclusion of certain evidence at trial. We address the jury instructions in the published portion of this opinion. DISCUSSION Special Verdicts [1-3] ¶7 The court instructed the jury to use special verdict forms on the sentencing issues, and that it must be unanimous to answer the special verdicts: Because this is a criminal case, all twelve of you must agree in order to answer the special verdict forms. In order to answer the special verdict forms "yes," you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no." Ryan argues for the first time on appeal that this instruction was error. ¶8 In Bashaw, the jury had to determine whether the State had proved a fact giving rise to a sentence enhancement. Though unanimity is required to find the presence of a special finding increasing the maximum penalty, it is not required to find the absence of such a special finding. The jury instruction here stated that unanimity was required for either determination. That was error. ¶9 The instruction here was likewise error. The State's burden is to prove to the jury beyond a reasonable doubt that its allegations are established. If the jury cannot unanimously agree that the State has done so, the State has necessarily failed in its burden. ¶10 Ryan did not object to the instructions below. Ordinarily, failure to timely object waives the claim on appeal. ¶11 The State points out that neither Goldberg nor Bashaw articulated a constitutional rationale, and relies on a footnote in Bashaw in which the court observed that its holding is "not compelled by constitutional protections against double jeopardy, but rather by the common law precedent of this court, as articulated in Goldberg." ¶12 In a thoughtful and thorough opinion, Division Three of this court recently came to that conclusion, holding that the same error was not of constitutional magnitude and cannot be raised for the first time on appeal. ¶13 We reach the opposite conclusion. The Bashaw court strongly suggests its decision is grounded in due process. The court identified the error as "the procedure by which unanimity would be inappropriately achieved" and referred to "the flawed deliberative process" resulting from the erroneous instruction. ¶14 The State next contends Bashaw applies only to special verdicts on sentencing enhancements, not aggravating circumstances. ¶15 The State reads this provision to require jury unanimity to render any verdict about aggravating circumstances, whether affirmative or negative. We do not. ¶16 Reading the quoted section together with other provisions of the statute, as we must, convinces us that unanimity is required only for an affirmative finding. ¶17 But the State contends the statute permits retrial if the jury is not unanimous about aggravating circumstances. The State points to the Bashaw court's emphasis on concerns about judicial economy, cost, and finality to support its conclusion that a nonunanimous "no" verdict was final as to sentencing enhancements, and contends these economic interests do not weigh as heavily with respect to aggravating circumstances. ¶18 But the amendments codified in RCW 9.94A.537(2) responded to Blakely v. Washington, ¶19 We find no basis on which to distinguish Bashaw. Accordingly, we vacate Ryan's exceptional sentences and remand for further proceedings consistent with this opinion. ¶20 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040. FURTHER DISCUSSION Limitation on Cross-Examination ¶21 Before trial, the State moved to exclude evidence related to an incident in May 2007 in which White allegedly stabbed Ryan. White was arrested, but no charges were filed. Based upon her review of the records, the prosecutor in this case believed White had had a colorable self-defense claim. ¶22 Ryan opposed the motion, arguing the incident was relevant to whether White reasonably feared him and because White might open the door to the subject in direct examination. The court reserved its ruling and directed counsel to raise the issue before beginning cross-examination on that topic. ¶23 During a break in cross-examination of White, defense counsel sought permission to inquire into the stabbing. Counsel argued White's arrest was relevant because it established bias and motivation to fabricate to curry favor with the State and was probative of whether White feared Ryan. Counsel also argued White had opened the door by testifying she ran away once when Ryan slapped her because "I can't physically do too much to George." ¶24 Ryan contends the court violated his right to present a complete defense and to cross-examine witnesses by excluding evidence of the stabbing. For the first time on appeal, he argues also that the evidence was admissible to provide the jury with a complete picture of White's relationship with Ryan. ¶25 Whether the trial court has violated the confrontation clause is a question of law, reviewed de novo. ¶26 The rights to present a defense and to confront and cross-examine adverse witnesses are guaranteed by both the federal and state constitutions. ¶27 The question here is whether evidence of the stabbing was relevant to any issue at trial. "Relevant evidence" under Evidence Rule 401 means evidence which tends to make the existence of any fact of consequence more probable or less probable. We find none of Ryan's arguments persuasive. ¶28 Reasonable Fear. Central to the charges was whether or not White had a reasonable fear that Ryan would hurt her or carry out his threat to kill her. ¶29 Bias And Motive To Fabricate. Ryan also contends White's arrest was relevant to her bias or motive to fabricate because White may have testified for the State to avoid prosecution for the stabbing. He relies on Davis v. Alaska, in which the Supreme Court held the defense was entitled to cross-examine an adverse witness on his status as a probationer to demonstrate his potential bias. ¶30 In Davis, the witness was on probation for burglary. ¶31 This case is unlike Davis. White's arrest was two years before. She had been released without charges. No prosecutor had ever spoken to her about the incident. Given the circumstances suggesting self-defense, it is unlikely any charges would ever be filed. There is no evidence from which a jury could reasonably infer that White was or believed herself to be in peril of prosecution. Evidence of White's arrest was not relevant to her bias or motivation to fabricate. ¶32 Open Door. On direct examination of White, the State was permitted to introduce evidence of six other instances of domestic violence, including one that occurred on August 4, 2003. White testified Ryan slapped her in the face, so "I [took] off running. I mean, I can't physically do too much to George." ¶33 The open door rule allows a party to introduce otherwise inadmissible evidence on cross-examination when a witness testifies about it on direct. ¶34 Ryan argues the evidence was relevant to White's credibility because she denied being capable of "doing too much" to him when in fact she had once caused him serious injury. This presents no inconsistency that would undermine White's credibility. At best, the stabbing shows only that White was capable of doing Ryan physical harm when she was armed with a weapon. There is no evidence White had a weapon during the August 4, 2003 episode or the incident giving rise to the current charges. ¶35 Dynamics Of Relationship. The court allowed the State to present evidence of a number of instances of domestic violence based upon on State v. Magers, which held that "prior acts of domestic violence, involving the defendant and the crime victim, are admissible in order to assist the jury in judging the credibility of a recanting victim." CONCLUSION ¶36 Because the stabbing incident was not relevant, its exclusion did not deprive Ryan of his right to present a defense or to confront adverse witnesses. ¶37 We affirm Ryan's convictions. Because of the instructional errors addressed above, we vacate his exceptional sentence and remand for further proceedings. COX and APPELWICK, JJ., concur.