126 Wn.2d 244, STATE v. POWELL

Apr. 1995

[No. 61610-8. En Banc. April 13, 1995.]

STATE v. POWELL

THE STATE OF WASHINGTON, Respondent, v. FORD POWELL, JR., Petitioner.

[1] Evidence Pretrial Order Review Failure To Object at Trial Effect. A party at trial need not renew an objection to the admission of evidence that was the subject of a final adverse pretrial ruling unless the trial court indicated that a further objection is required. When the trial court has made only a tentative pretrial ruling that is subject to evidence developed at trial, a party must renew the objection at trial to preserve the issue for review.

[2] Evidence Review Standard of Review. A trial court's evidentiary rulings are reviewed under the abuse of discretion standard.

[3] Courts Judicial Discretion Abuse What Constitutes In General. A trial court does not abuse its discretion unless its discretionary action is manifestly unreasonable or is based on untenable grounds or reasons.

[4] Criminal Law Evidence Other Offenses or Acts Test. When admitting evidence under ER 404(b) of a criminal defendant's crimes or misconduct other than that charged, a trial court must identify the purpose for which it is admitted and determine whether the evidence is relevant and necessary to prove an essential ingredient of the crime charged.

[5] Evidence Review Alternative Grounds In General. A trial court's evidentiary rulings will be sustained on any proper basis.

[6] Criminal Law Evidence Other Offenses or Acts Motive What Constitutes. For purposes of ER 404(b), which makes evidence of a criminal defendant's prior misconduct admissible to prove motive, "motive" encompasses an impulse, desire, or any other moving power that causes an individual to act.

[7] Criminal Law Evidence Motive Prior Misconduct Toward Victim. Evidence of a criminal defendant's previous quarrels, ill-feeling, and threats toward a victim is relevant to the issue of the defendant's motive.

[8] Criminal Law Evidence Other Offenses or Acts Motive Probative Value Supplementing Circumstantial Evidence. For purposes of ER 404(b), which makes evidence of a criminal defendant's prior misconduct admissible to prove motive, establishing motive is often necessary when only circumstantial proof of guilt exists.

[9] Criminal Law Evidence Other Offenses or Acts Intent Disputed Issue Alternative Proof. Evidence of a criminal defendant's prior misconduct is not admissible to prove intent under ER 404(b) if intent is not at issue in the prosecution or if proof of the commission of the act charged conclusively establishes intent.

[10] Criminal Law Evidence Other Offenses or Acts Opportunity What Constitutes. For purposes of ER 404(b), which makes evidence of a criminal defendant's prior misconduct admissible to prove opportunity, "opportunity" is the ability of a defendant to commit a wrong because of a favorable combination of circumstances, time, and place that serves to identify the defendant.

[11] Criminal Law Evidence Other Offenses or Acts Inseparable Part of Whole Deed. Evidence of a criminal defendant's prior misconduct is admissible under ER 404(b) to complete the story of the charged crime; the evidence must provide the context of the events of the crime in close proximity in time and place to the crime.

[12] Criminal Law Evidence Other Offenses or Acts Relevance Balance Against Prejudice In General. When admitting evidence of a criminal defendant's prior misconduct under ER 404(b), a trial court must balance on the record the danger of prejudice against the probative value of the evidence in light of alternative means of proof and other factors.

[13] Evidence Hearsay What Constitutes Personal Observations. A witness's testimony based on his or her own observations is not hearsay.

[14] Evidence Hearsay Past State of Mind Intent Future Conduct of Declarant. Under the state of mind exception to the hearsay rule (ER 803(a)(3)), a hearsay statement relating to the declarant's future intent is admissible to prove that the declarant acted in accordance with that intent.

[15] Criminal Law Review Harmless Error Constitutional Error In General. Error of constitutional magnitude in a criminal case is harmless if the State shows beyond a reasonable doubt that there is no reasonable probability that the outcome of the trial would have been different had the error not occurred.

[16] Criminal Law Evidence Review Harmless Error Factors. Whether an error is harmless depends on a number of considerations including: (1) the importance of the witness's testimony, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony, (4) the extent of cross examination otherwise permitted, and (5) the overall strength of the State's case.

ALEXANDER and TALMADGE, JJ., did not participate in the disposition of this case.

Nature of Action: The defendant was charged with the second degree murder of his wife.

Superior Court: The Superior Court for Skagit County, No. 91-1-00005-0, Gilbert E. Mullen, J., on September 16, 1991, entered a judgment on a verdict of guilty.

Court of Appeals: In an unpublished opinion noted at 73 Wn. App. 1013, the court reversed the judgment.

Supreme Court: Holding that the majority of the claimed evidentiary errors were preserved for appeal, but that evidence of the defendant's prior misconduct was admissible to prove motive and the context of the homicide, that the probative value of the evidence outweighed its prejudicial effect, and that the erroneous admission of hearsay testimony did not require reversal, the court reverses the decision of the Court of Appeals and reinstates the judgment.

David R. Needy, Prosecuting Attorney, and K. Garl Long, Chief Deputy, for petitioner.

Michael Danko, for respondent.

MADSEN, J. Defendant Ford Powell, Jr. (Powell or Defendant) was convicted of the second degree murder of his wife, Carolyn (Carrie) Powell. At issue is whether the trial court erred in admitting certain evidence including prior assaults on Carrie by Powell under ER 404(b), 403, and 801.

FACTS

On March 29, 1990, Carrie's body was found floating in Bowman's Bay of Puget Sound. An autopsy revealed that Carrie's death was caused by manual strangulation. It further determined that she died fairly soon after her last meal as very little food had passed from her stomach to her intestine. A sweatshirt given to Carrie the day before by her sister-in-law and skull fragments were collected near the Deception Pass Bridge. A tide expert determined that for Carrie's body to have reached Bowman's Bay at the time it was discovered, her body must have been thrown off the bridge between 1 a.m. and 2:30 a.m. on March 29, 1990.

Based on information provided by Carrie's friends and relatives, the police focused on her husband as a suspect. In the early morning hours of March 30, a search warrant was obtained for the Powell residence. When the police attempted to reach Powell by calling and knocking before entering, he did not respond. The police then forced the door open. They found Powell in the bedroom, lying in bed and still wearing all his clothes. The police testified that Powell was read his rights, handcuffed, and taken out to the dining room. When told by the police that they were investigating his wife's disappearance, Powell pointed out a collection of pill bottles on the table, saying "[t]hese are her pills". Verbatim Report of Proceedings vol. 4, at 626. After a brief discussion inside, Powell was taken outside and talked with Detective Chris Andersen in the detective's car. Powell's descriptions of what happened the evening before in response to Detective Andersen's questions were inconsistent. The other detectives continued searching the house. They found Carrie's lightweight jacket in the closet, her sweatpants and bra in a pile at the end of the bed, her watch in the bathroom, her keys lying on the desk, the shoes that her family said she usually wore by the door, and her dog's leash lying on the bedroom floor. Carrie's dog was not around. The officers testified that with the exception of the papers piled on the table, the bed, and the dog leash, the house was very orderly and well kept. At the jail, the police discovered that Powell was wearing a ring on his pinkie finger that was later identified by Carrie's sister-in-law as a ring Carrie had received when her mother died and customarily wore.

On January 8, 1991, the Defendant was formally charged by information with second degree murder in violation of RCW 9A.32.050(1)(a), which was later amended on July 1, 1991, to include a cite to RCW 9A.32.050(1)(b) as well.

Before trial, the Defendant made a motion in limine to exclude evidence of prior misconduct and hearsay statements. As part of this motion, the defense asked that the State list with specificity all evidence it intended to introduce regarding the alleged prior misconduct of the Defendant, the alleged statements of Carrie, and all the witnesses who would be testifying as to these. In response, the State prepared a list of the proposed testimony of witnesses and attached the list to its Brief in Opposition. This list was divided into three sections as follows:

I. EVENTS ACTUALLY WITNESSED

1. October of 1989 Defendant assaulted victim . . .

A. Sheri Closson Closson was present in the Powell's [sic] apartment on Fir St. when the defendant abruptly exploded and shoved the victim backward over a stool, sending the victim sprawling on the floor.

2. November 13, 1989 Defendant assaults victim and Stephanie Goss

A. Stephanie Goss Goss was taking a shower . . .. She heard the victim scream, and Goss came quickly out of the shower to see what was the matter. She saw the victim lying on her back on the floor with one foot up on the table, as though she had just been pushed over it and fell down. The victim was still screaming and shaking. Defendant was standing over the victim. Goss said to the defendant, "You son of a bitch, you're going back to prison for this." The defendant then struck Goss on the mouth, splitting her lip open . . ..

B. Diane Belgarde Belgarde happened to drop by at the Powell's [sic] apartment on Fir Street immediately after the defendant's assault on the victim and on Stephanie. The house was in a shambles. . . . The victim . . . told Belgarde that the defendant had assaulted her and then Goss, and that it was caused by the fact that the defendant was trying to coerce the victim into selling her house in Seattle against her will.

3. December of 1989 Aborted attempted [sic] at divorce by victim

A. Patrick McBride The victim went to an attorney's office in order to get a divorce from the defendant. . . . McBride took the victim to the attorney's office.

B. Janice Rinsemith [sic] The victim told Rinesmith that she had given [the attorney] a retainer for a divorce from the defendant.

C. Bill Nielsen Was retained by the victim to get a divorce from the defendant, but the victim decided later to drop the case.

4. January 12, 1990 Assault by defendant upon victim in Sedro Woolley

A. Holly Cowell Witnessed the victim walking along a street in Sedro Woolley with defendant driving (the wrong way) beside her trying to get her to get back in the car. The two were arguing. Cowell stopped the car she was driving and gave victim a lift back to her house. The victim told Cowell that the defendant beat her. . . .

B. Carrie Crowell Witnessed the same as Holly Cowell . . ..

C. Officer Bud Heitman Responded to call from Cowell and Crowell. When he arrived at the Powell's [sic] residence, he saw the defendant and the victim walking out and down the sidewalk. He spoke to them, but they did not respond. The victim looked scared. The defendant kept looking away.

5. Afternoon of March 28, 1990 The defendant got mad at the bank when he discovered the funds had been withdrawn from the joint account he had with the victim.

A. Linda Penneke Penneke opened new account for the defendant on the afternoon of March 28, 1990.

B. Les Moller An employee of the bank, Les Moller was present and recalls the defendant getting extremely upset when he discovered that the funds ($1,500 or so) from the joint account he had with the victim were missing, having been withdrawn the previous day.

II. HEARSAY EVENTS WITH PHYSICAL

CORROBORATION

1. July of 1989 Defendant assaulted victim, leaving a silver dollar-size bruise on inside of arm.

[A.] Lee Hewitt While defendant and victim were at Hewitt's house, Hewitt noticed a large, fresh bruise somewhat larger than a silver dollar on the inside of victim's upper arm. While in defendant's presence, victim explained the bruise by saying she just banged herself. But on the phone at a later date, she admitted to Hewitt that defendant had given her the bruise during one of their arguments.

2. August or September of 1989 Defendant assaulted and tried to strangle victim

A. Pat McBride Shortly after defendant and victim were married (7/5/89), victim came to stay with McBride because she needed a place to hide from defendant. Victim said defendant had tried to strangle her and that she was afraid of him. McBride saw a bruise about a quarter of an inch in size under the victim's jaw on the right side of her throat that the victim identified as coming from defendant's assault on her. . . .

B. Diane Belgarde Victim called Belgarde and asked her to come get her out of the Fir St. Apartment. When Belgarde arrived, the place was a mess, as though a big fight in which things were thrown had occurred. Victim complained of a sore arm. Victim also told Belgarde that defendant had tried to strangle her and showed Belgarde multiply [sic] red marks on her neck. . . .

3. Early November of 1989 Defendant gave victim a fat lip

A. Stephanie Goss Goss walked into Powell's apartment on Fir Street at about 3:30 p.m., . . .. The victim had a fat lip. The defendant's sister was telling the victim repeatedly, "That's no reason to get a divorce." After the parents and sister left, the victim told Stephanie that the defendant had hit her and given her the fat lip because the victim wouldn't sign over the papers on the house in Seattle she owned. . . .

4. December of 1989 Bruises in shape of handprints witnessed on victim's arms . . .

A. Janice Rinesmith Rinesmith saw bruises on victim's upper arms, and felt that they looked like fingerprints as if someone had grabbed her. . . .

5. December of 1989 Spot in back of victim's head . . .