The state can get a conviction in a Washington domestic violence case even when the alleged victim does not testify. In such cases, it is very important for the defendant to fight the admission of other improper evidence that may be harmful to the defense. In a recent case, a defendant was convicted of second degree assault and 13 counts of violation of a domestic violence no-contact order despite the fact his wife failed to appear to testify.
A woman called her daughter and told her she had been in an altercation with her husband and he had choked her. The woman then drove to her daughter’s home in Idaho. The woman said she was afraid of her husband. The daughter saw marks on her mother’s face and neck and asked if she should call the police.
When the officer arrived, he observed injuries consistent with strangulation. The woman told the officer she did not feel safe in her home where the incident occurred. The officer contacted the local authorities in Washington and an Asotin County detective came to the daughter’s home. The detective also noticed injuries consistent with strangulation and took photos to document them.
When the detective spoke to the husband, he argued that his actions were not second degree assault because there had not been “a broken bone or weapon involved.” The detective ultimately arrested the defendant.
The husband was charged with second degree assault, committed by means of strangulation. The court entered a domestic violence no-contact order (NCO) that prohibited the defendant from having contact with his wife. The appeals court noted he had called her 13 times from jail in less than a month. The state added 13 counts of violation of a domestic violence NCO to the charges.
The court issued a material witness warrant for the wife, but she did not appear to testify.
The daughter testified at trial, and the state played calls between the defendant and his wife to show violation of the NCO. The recordings included discussion of the wife telling police nothing happened. On cross-examination, the defendant asked the daughter if her mother had written a statement. The daughter confirmed she had. The state then sought to introduce the statement and the defendant objected. The trial court admitted the statement.
The detective testified she was aware of a history of domestic violence between the defendant and his wife. She also testified that strangulation is a felony because it is very serious and often leads to death. She explained the difference between strangulation and choking and stated that lay persons often refer to strangulation as “choking.”
The defendant was found guilty of all charges. Following the verdict, the defendant’s wife submitted an affidavit stating she came to the courthouse but the defendant’s attorney asked her not to come inside and testify. The court appointed new counsel. The trial court denied a defense motion for a new trial, finding the interaction did not rise to the level of ineffective representation.
The defendant appealed. He argued the court erred in admitting the wife’s written statement. The appeals court found he failed to preserve the error and therefore had to show it was a manifest error affecting a constitutional right. The appeals court therefore rejected the defendant’s argument he had not opened the door to admission of the statement. The defendant also argued that admission of the statement violated his constitutional right to confront his accuser. The appeals court found, however, there was not a manifest error because there no practical and identifiable consequences. The statement was consistent with what the woman had told the witnesses who testified.
The defendant also alleged prosecutorial misconduct, but had not preserved that issue for appeal either. He therefore had to show that it “was so flagrant and ill intentioned” that a curative instruction could not have prevented the prejudice it created. The defendant challenged the detective’s testimony regarding strangulation.
The appeals court noted the defendant had argued his actions did not constitute a serious felony. The state used the detective’s testimony on strangulation to show strangulation is a serious danger to rebut the defendant’s argument. The appeals court found it was not misconduct for the state to elicit testimony to rebut the defense.
The defendant also challenged the testimony that people often refer to strangulation as “choking.” The appeals court noted the detective was experienced in responding to domestic violence issues. It found the testimony was appropriate to help the jury understand the meaning of the two words.
The appeals court also found the detective’s characterization of the defendant’s comments as demeaning was not misconduct. The appeals court noted it may have been objectionable, but did not rise to the level of flagrant or ill intentioned. Furthermore, it was not prejudicial because the jury heard the recordings of the phone calls and were able to come to their own conclusions.
The defendant challenged other issues as well, but the appeals court affirmed. The case was remanded for a correction of a clerical error.
This case illustrates the importance of challenging improper evidence at the trial court level. Because the defendant had not done so here, he had to meet a higher standard on appeal. It also serves as a reminder that every instance of contact can be a separate count for violation of an NCO. Because the calls were recorded during the defendant’s incarceration, the state was able to get a conviction even without the alleged victim’s testimony.
If you are facing a domestic violence case, a skilled Washington civil protection order attorney can help. The attorneys at Blair & Kim, PLLC, have a thorough knowledge of the law involving criminal defense, family law and civil protection orders. Call us at (206) 622-6562 to discuss your case.
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