160 Wn. App. 944, STATE V. RYAN

[No. 64726-1-I. Division One. April 4, 2011.]

THE STATE OF WASHINGTON, Respondent, v. GEORGE W. RYAN, Appellant.

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. 1 Because the jury was so instructed in this case, we vacate George Ryan's exceptional sentences. We otherwise affirm.

1 169 Wn.2d 133, 145-48, 234 P.3d 195 (2010).

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." [2]

Ryan argues for the first time on appeal that this instruction was error.

2 Clerk's Papers (CP) at 79.

8 In Bashaw, the jury had to determine whether the State had proved a fact giving rise to a sentence enhancement. 3 In explaining the special verdict forms, the trial court gave the standard unanimity instruction. Our Supreme Court held the instruction erroneous for sentencing verdicts and reversed:

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. [4]

3 169 Wn.2d at 145.

4 Id. at 147 (citation omitted) (citing State v. Goldberg, 149 Wn.2d 888, 893, 72 P.3d 1083 (2003)).

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. 5 To require the jury to be unanimous about the negative--to be unanimous that the State has not met its burden--is to leave the jury without a way to express a reasonable doubt on the part of some jurors. 6

5 Id.

6 In Goldberg, the jury was instructed to answer "no" if it could not unanimously answer "yes." Goldberg, 149 Wn.2d at 893 ("In order to answer the special verdict form 'yes', you must unanimously be satisfied beyond a reasonable doubt that 'yes' is the correct answer. If you have a reasonable doubt as to the question, you must answer 'no'." (Emphasis omitted.)). The Supreme Court vacated the exceptional sentence in that case not because of a faulty instruction but because of the trial court's insistence that the jury be unanimous to answer "no." Id. at 894.

10 Ryan did not object to the instructions below. Ordinarily, failure to timely object waives the claim on appeal. 7 This is so even with respect to instructional errors. 8 But an appellant may raise an issue for the first time on appeal if the error is both manifest and of constitutional dimension. 9 Though the State contends the instructional error here meets neither condition, Bashaw compels the conclusion the error is both manifest and constitutional.

7 RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).

8 See, e.g., State v. Williams, 159 Wn. App. 298, 312-13, 244 P.3d 1018 (2011).

9 State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).

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." 10 The State contends this footnote establishes that the error is not of constitutional magnitude. The State also points to the Bashaw court's emphasis on concerns about judicial economy, cost, and finality, which are not constitutional concerns.

10 Bashaw, 169 Wn.2d at 146 n.7 (citation omitted).

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. 11

11 State v. Guzman Nunez, 160 Wn. App. 150, 160-65, 248 P.3d 103 (2011).

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. 12 The court then concluded the error could not be deemed harmless beyond a reasonable doubt, which is the constitutional harmless error standard. The court refused to find the error harmless even where the jury expressed no confusion and returned a unanimous verdict in the affirmative. 13 We are constrained to conclude that under Bashaw, the error must be treated as one of constitutional magnitude and is not harmless.

12 Bashaw, 169 Wn.2d at 147.

13 Id. at 147-48; see also State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (The "test for determining whether a constitutional error is harmless [is] '[w]hether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (Alteration in original) (internal quotation marks omitted) (quoting Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).)).

14 The State next contends Bashaw applies only to special verdicts on sentencing enhancements, not aggravating circumstances. 14 The State relies on the statute governing jury determination of aggravating circumstances. Unlike statutes pertaining to sentence enhancements, which say nothing about unanimity, RCW 9.94A.537(3) states, in pertinent part, "The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory."

14 The State does not concede that Bashaw correctly states the law with respect to sentencing enhancements but acknowledges this court is bound by the decision.

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. 15 Subsection 6 empowers the court to sentence a defendant to the maximum term of confinement "[i]f the jury finds, unanimously and beyond a reasonable doubt, one or more of the facts alleged by the state in support of an aggravated sentence." 16 This language plainly contemplates the possibility that the jury will not be unanimous, in which case the court may not impose the aggravated sentence.

15 In re Pers. Restraint of Skylstad, 160 Wn.2d 944, 948, 162 P.3d 413 (2007) ("When we read a statute, we must read it as a whole and give effect to all language used.").

16 RCW 9.94A.537(6) (emphasis added).

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. 17 The State also points to RCW 9.94A.537(2), which empowers courts to impanel juries to retry alleged aggravating circumstances when an exceptional sentence is reversed on appeal.

17 Bashaw, 169 Wn.2d at 146-47 ("Retrial of a defendant implicates core concerns of judicial economy and finality. Where, as here, a defendant is already subject to a penalty for the underlying substantive offense, the prospect of an additional penalty is strongly outweighed by the countervailing policies of judicial economy and finality.").

18 But the amendments codified in RCW 9.94A.537(2) responded to Blakely v. Washington, 18 after which aggravated sentences were reversed because, consistent with prior law, judges rather than juries had found the predicate facts. 19 The provision reveals nothing about the legislature's intent concerning retrial in these circumstances.

18 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (holding the Sixth Amendment requires the State to prove to the trier of fact beyond a reasonable doubt facts supporting an exceptional sentence).

19 LAWS OF 2007, ch. 205, $$ 1, 2.

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." 20 The court denied Ryan's request.

20 Report of Proceedings (RP) (Nov. 17, 2009) at 328.

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. 21 We review a trial court's ruling on the admissibility of evidence for abuse of discretion, and will not disturb a court's limitation on the scope of cross-examination absent a manifest abuse of discretion. 22 Abuse exists when the trial court's exercise of discretion is "'manifestly unreasonable or based upon untenable grounds or reasons.'" 23

21 State v. Jones, 168 Wn.2d 713, 723-24, 230 P.3d 576 (2010).

22 State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002); State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984).

23 Darden, 145 Wn.2d at 619 (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).

26 The rights to present a defense and to confront and cross-examine adverse witnesses are guaranteed by both the federal and state constitutions. 24 But a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense, and the right to cross-examine adverse witnesses is not absolute. 25 Even relevant evidence may be excluded without offending the defendant's confrontation right if the State has a compelling interest in precluding evidence so prejudicial as to disrupt the fairness of the trial. 26

24 U.S. CONST. amend VI; WASH. CONST. art. I, $ 22; Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).

25 Hudlow, 99 Wn.2d at 15; Darden, 145 Wn.2d at 620; see also ER 611(b) (court has discretion to determine scope of cross-examination).

26 Hudlow, 99 Wn.2d at 15.

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. 27 Ryan contends evidence that White had once stabbed him is relevant to this question because it makes it less likely that she reasonably feared he would hurt or kill her on this occasion. But the alleged stabbing occurred more than two years before, under circumstances suggesting self-defense. Even if White stabbed Ryan without provocation, the incident has no bearing on her fear when he was the one with the knife.

27 See CP at 69 (jury instruction defining "assault" as an act done with intent to create fear that "in fact creates in another a reasonable apprehension and imminent fear of bodily injury"); CP at 72 (to convict instruction on felony assault requiring jury to find that "the words or conduct of the defendant placed Evette White in reasonable fear that the threat to kill would be carried out").

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. 28

28 415 U.S. 308, 317-18, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

30 In Davis, the witness was on probation for burglary. 29 He was testifying against individuals charged with burglary for stealing a safe, which was discovered on the witness's property. 30 The witness's record and probation status thus implicated both his enthusiasm to cooperate with the State and his possible motivation to fabricate in an effort to deflect suspicion of his own involvement. 31

29 Id. at 311.

30 Id. at 309.

31 Id. at 313-14, 317.

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." 32 Ryan contends White's statement that she cannot "physically do too much" to him opened the door to evidence that she was once arrested for stabbing him.

32 RP (Nov. 17, 2009) at 328.

33 The open door rule allows a party to introduce otherwise inadmissible evidence on cross-examination when a witness testifies about it on direct. 33 But the evidence must still be relevant to some issue at trial. 34

33 State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998).

34 Id.

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." 35 Ryan argues that evidence of the stabbing was relevant for the same purpose. But Ryan never made this argument below, and has therefore waived it. 36 Further, White was not a recanting victim.

35 164 Wn.2d 174, 186, 189 P.3d 126 (2008).

36 See State v. Jordan, 39 Wn. App. 530, 539, 694 P.2d 47 (1985) (defendant failed to preserve review based on one evidentiary rule by objecting based on another).

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 The State's interest in seeking a just trial by preventing evidence of little probative value from distracting the jurors was sufficient to justify exclusion of the evidence. 38 The court's ruling excluding the evidence and limiting cross-examination were not manifestly unreasonable and present no abuse of discretion.

37 See Hudlow, 99 Wn.2d at 15-16.

38 Id.

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.