State v. Healea

7 Wn.App.2d 1051

STATE OF WASHINGTON, Respondent, v. MATHEW CLARK HEALEA, Appellant.

No. 77413-1-I

Court of Appeals of Washington, Division 1

February 25, 2019

UNPUBLISHED OPINION

Smith J.

Mathew Healea appeals his conviction for fourth degree domestic violence assault. Healea argues that the trial court erred by excluding a defense witness's testimony, refusing to instruct the jury on the affirmative defense of lawful defense of another, and denying his request for a missing witness instruction. He also argues that the trial court violated the antiattachment provision of the Social Security Act, 42 U.S.C. § 407(a), by imposing mandatory legal financial obligations (LFOs) when his only income is from Social Security disability benefits.

We affirm Healea's conviction. The expected defense witness testimony was not relevant to the assault, the evidence presented did not support an instruction on the lawful defense of another, and a missing witness instruction was not warranted because the absent witness was not peculiarly available to the State. But we remand to the trial court to amend the judgment and sentence to specify that the LFOs imposed may not be satisfied out of any funds subject to the antiattachment statute. !

FACTS

On August 20, 2016, Pamela Aguilar and Harvey Avalos were driving down Maple Valley Highway when they saw a man and woman, later identified as Healea and C.W., on the side of the road. C.W: had her thumb out. Aguilar and Avalos decided to pick up C.W., but before C.W. could get into the car Healea grabbed her by the neck and arm and dragged her down a steep embankment away from the road and toward a residence.

C.W screamed for help, and Avalos called 9-1-1. Aguilar watched C.W. try to fight off Healea, grabbing at the ground while Healea tried to pick her up. C.W. pushed and kicked Healea and screamed that Healea was going to kill her. Healea attempted to throw C.W. over his shoulder multiple times but was unsuccessful. Eventually, C.W. dropped a backpack she was carrying onto the ground. Healea yelled at Aguilar and Avalos several times to go away. C.W. then grabbed on to a tree, and Healea hit her in the face and on the chest in an attempt to loosen her grip on the tree. When that failed, Healea left C.W. to grab her discarded backpack. At that point, C.W. ran to Aguilar's car and Aguilar drove C.W. to a store, where they were met by first responders.

The State charged Healea by information with one count of unlawful imprisonment (domestic violence) and one count of assault in the fourth degree (domestic violence). Aguilar and several of the first responders testified at trial. C.W. and Healea did not testify, but defense counsel argued that Healea restrained C.W. to protect her from hitchhiking with strangers while high on methamphetamines. The jury found Healea guilty of assault in the fourth degree (domestic violence) but acquitted him of the unlawful imprisonment charge. At sentencing, the trial court imposed $600 in mandatory LFOs.

Healea appeals.

ANALYSIS

Admission of Defense Witness Testimony

Healea argues that the trial court violated his right to present a defense by excluding the testimony of Deputy Jeffrey Dorsch who would have testified that C.W. had a history of self-harm, which is relevant to her credibility and capacity. We disagree.

We review a trial court's evidentiary rulings for abuse of discretion. State v. Clark, 187 Wn.2d 641, 648, 389 P.3d 462 (2017). A court abuses its discretion when its exercise of discretion is manifestly unreasonable or based on untenable reasons or on untenable grounds. State v Black, 191 Wn.2d 257, 266, 422 P.3d 881 (2018). Where the trial court excludes relevant defense evidence, we review de novo whether the exclusion violates the defendant's constitutional right to present a defense. Clark. 187 Wn.2d at 648-49; State v. Jones, 168 Wn.2d 713 719, 230 P.3d 576 (2010).

"The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.'" Jones. 168 Wn.2d at 720 (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). A defendant's right to an opportunity to be heard in his defense, including the right to offer testimony, is basic but not absolute. Jones. 168 Wn.2d at 720. "Evidence that a defendant seeks to introduce 'must be of at least minimal relevance.'" Jones. 168 Wn.2d at 720 (quoting State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002)). "Defendants have a right to present only relevant evidence, with no constitutional right to present irrelevant evidence." Jones. 168 Wn.2d at 720. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. A trial court properly excludes evidence that is "remote, vague, speculative, or argumentative because otherwise 'all manner of argumentative and speculative evidence will be adduced,' greatly confusing the issue and delaying the trial." State v. Kilgore, 107 Wn.App. 160, 185, 26 P.3d 308 (2001) (quoting State v. Jones, 67 Wn.2d 506, 512, 408 P.2d 247 (1965)), aff'd on other grounds. 147 Wn.2d 288, 53 P.3d 974 (2002)).

Here, Healea made an offer of proof that Deputy Dorsch would testify that he performed a mental health check on C.W. on February 24, 2016, six months before the assault. At the time, C.W. said she wanted to kill herself and she was involuntarily committed as a result. Healea argued that this testimony was relevant because it proved that C.W. had a history of self-harm and that Healea's decision to protect C.W. from a risky activity like hitchhiking was reasonable. The trial court did not allow Deputy Dorsch to testify, explaining that "[h]ad it occurred on the same day of the event, I would be much more inclined to see it as relevant evidence."

The trial court did not abuse its discretion by excluding Deputy Dorsch's testimony. Testimony about an isolated incident involving C.W.'s mental state six months before the assault is too remote to be relevant to Healea's actions on the date of the assault. Therefore the exclusion of that testimony did not violate Healea's right to present a defense.

Relying on Jones. Healea argues that the trial court should have admitted Deputy Dorsch's testimony because it was of "high probative value." Jones. 168 Wn.2d at 721. He is mistaken In Jones, a rape case, reversal was required because the trial court refused to allow the defendant to testify that the sex was consensual and to cross-examine the victim on consent. The Supreme Court explained that the trial court erred because this evidence constituted the defendant's "entire defense" and was therefore of "extremely high probative value." Jones. 168 Wn.2d at 721.

Here, although evidence of C.W.'s prior threat of self-harm may be a large portion of Healea's defense, it is not "highly probative" because the incident occurred many months before the assault. Unlike Jones, where the excluded testimony concerned the rape itself, evidence of C.W.'s threat of self-harm is remote in time to the assault. Therefore, Jones does not require reversal.

Instruction on Lawful Defense of Another

Healea argues that the trial court erroneously relieved the State of its burden of proving each element of the crime when it refused to instruct the jury on the affirmative defense of lawful defense of another. We disagree.

A defendant is entitled to have the jury instructed on his theory of the case if there is evidence to support that theory. State v. Fisher, 185 Wn.2d 836, 848, 374 P.3d 1185 (2016). A trial court's failure to so instruct the jury is reversible error. Fisher, 185 Wn.2d at 849. In evaluating the defendant's evidence, the trial court must view it in the light most favorable to him Fisher, 185 Wn.2d at 849. "The trial court is justified in denying a request for [an affirmative defense] instruction only where no credible evidence appears in the record to support [it].'" Fisher, 185 Wn.2d at 849 (alterations in original) (quoting State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983)). The defendant bears the burden of production. Fisher, 185 Wn.2d at 849. In Washington,

[t]he use, attempt, or offer to use force upon or toward the person of another is not unlawful. ..

(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person ... in case the force is not more than is necessary.

RCW 9A. 16.020. "The law allows defense of another person against a less-than- life-threatening assault, so long as the degree of force the defendant uses is limited to what a reasonably prudent person would find necessary under the conditions as they appeared to that defendant." State v. Marquez, 131 Wn.App. 566, 575, 127 P.3d 786 (2006) (emphasis omitted).

Whether the defendant has produced sufficient evidence to raise an affirmative defense is a matter of law. Fisher. 185 Wn.2d at 849. If the basis for the trial court's refusal to give the requested jury instruction is a lack of evidence supporting an affirmative defense, this court reviews that refusal de novo. Fisher, 185 Wn.2d at 849.

Here Healea proposed a jury instruction on the lawful defense of another. Defense counsel argued that the instruction was necessary because "[C.W.] placed herself in a dangerous position by being potentially under the influence of methamphetamines along the side of a busy highway-such that Mr. Healea's actions could be seen as a form of defense of her." The trial court refused Healea's proposed instruction, explaining that

in the Court's

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