State v. Stephens

STATE OF WASHINGTON, Respondent, v. KELLEY SUZANNE STEPHENS, Appellant.

No. 40238-6-II

Court of Appeals of Washington, Division 2

January 4, 2012

UNPUBLISHED OPINION

HUNT J.

Kelley Suzanne Stephens appeals her jury convictions for third degree assault and obstructing a law enforcement officer. She argues that the trial court erred (1) in giving the State's proposed jury instructions 11 and 12, which misstated the applicable law about police authority to enter a home, constituted an impermissible comment on the evidence and created an error of constitutional magnitude; and (2) by admitting irrelevant evidence of her prior and subsequent contacts with police for which the trial court failed to follow the ER 404(b) balancing procedure. She also argues that in the absence of the improperly admitted prior and subsequent police contacts, the evidence is insufficient to support her convictions. Holding that jury instruction 12 improperly directed a verdict for the State, we reverse and remand for a new trial.

FACTS

I. Crimes

Pierce County Sheriff's Deputy Eric Jank knew that there was an outstanding bench warrant for Timothy Roy Clinton's arrest based on his plea of guilty to misdemeanor unlawful "solicitation to possess a controlled substance." Clerk's Papers (CP) at 105. Driving past the residence of Clinton's girlfriend, Kelley Stephens, on June 28, 2009 Jank saw Clinton in the front yard and stopped. Clinton first hid behind some bushes and then ran to the back of the house. Before attempting to arrest Clinton, Jank confirmed the arrest warrant. Because Jank knew that Clinton always carried a knife, Jank called for backup and for a K-9 unit. Responding to the call for backup, Deputy Dennis Miller drove behind Stephens' residence looking for Clinton. Jank then saw Clinton return to the front yard and, despite Jank's command to stop, Clinton entered Stephens' house.

Stephens came out into the yard to speak with Jank. When Jank asked Stephens to tell Clinton to come outside, Stephens replied that she had not seen Clinton go into the house. According to Stephens, Jank reiterated that he had seen Clinton run into the house and that he had a "felony" warrant for his arrest; Stephens reiterated that she had not seen Clinton go inside. III VRP at 125. When Jank asked her to step aside so that he could go inside her home to arrest Clinton, Stephens asked to see the warrant, asserting that she had a constitutional right to see the warrant before she let Jank into her home.

Jank told Stephens that he did not need to show her the warrant that he did not have a physical copy of the warrant with him, and that the warrant was for Clinton's arrest. Stephens told Jank that she knew he did not have a felony warrant for Clinton because Clinton had pled guilty to only a gross misdemeanor. Jank told Stephens that if she did not get out of the way, he could arrest her for obstructing. Stephens walked back to the porch, stating that she was not letting the deputies inside her house without their first displaying a warrant.^[1]

Based on a similar previous encounter with Stephens, Jank believed that she was going to lock the door behind her; so he followed her to the porch. As Stephens entered the house and closed the sliding door hard behind her, Jank caught and held the door, which struck and pinned his arm against the door jamb. Jank pushed the door open and put Stephens in a hold by grabbing her wrist and arm while she struggled and yelled profanities at him. Miller joined Jank on the porch, where Jank restrained Stephens with handcuffs and put her in a chair. Stephens continued to struggle until Miller threatened to use his taser if she did not calm down. Jank arrested Stephens for third degree assault and put her in the back seat of his patrol vehicle.^[2]

II. Procedure

The State charged Stephens with one count of third degree assault, based on her closing the door on Jank and pinning his arm, and one count of obstructing a law enforcement officer, based on her conduct in hindering Clinton's arrest.

The State moved in limine to exclude as irrelevant Stephens' testimony that she believed (1) her constitutional protections prevented police from entering her home without her consent or a warrant; and (2) police could not lawfully enter her home merely by telling her they had an arrest warrant without showing her the actual document. Ruling Stephens' beliefs relevant, the trial court denied the State's motion and noted, "[I]f the State wants to look into some kind of jury instruction regarding the status of the law, that's something we can discuss later."^[3] 1 VRP (Dec. 15, 2009) at 7.

At trial, Miller described (1) the charged incident as based on Stephens' having closed the door "hard" and "aggressively" on Jank's arm, and (2) his (Miller's) belief that Stephens had tried to close the door on Jank because the door "was slammed closed" and she had stood face to face with Jank. VRP (Dec.15, 2009) at 26. Jank testified that 15 months earlier, he had gone to Stephens' home to arrest Clinton and had spoken with Stephens through a back window; she had denied that Clinton was in the house. After he (Jank) had reiterated to Stephens that he knew Clinton was inside, she had tried to close the window, but he had stopped her and she had walked away from the window. A few minutes later, Stephens had allowed Jank to come in the front door to arrest Clinton.

Stephens testified that (1) she has no convictions, that she had lived in her home for seven years, and that Clinton lived at her house "most of the time"^[4]; (2) after talking with Jank outside her home, she wanted to return inside because she was concerned about Clinton's 18-year-old autistic nephew inside and about her pets, one of whom had just had extensive veterinary work on a shattered jaw; (3) she was not sure whether she had explained these circumstances to Jank; (4) she believed that Jank had lied to her about having a "felony"^[5] warrant because she knew that Clinton had pled guilty to only a misdemeanor offense; (5) she believed she had a constitutional right to refuse police entry into her home without presentation of a warrant; and (6) as she attempted to close the door, Jank stuck his arm in the door, which then hit him. She denied having intentionally closed the door on Jank's arm and having tried to hinder or to delay Clinton's arrest.

On cross-examination, the State asked Stephens if Clinton typically lived at her house; she replied, "[Y]eah, on occasion." III VRP at 137 (emphasis added). The State also asked Stephens if she believed she could deny police entry if they did not show her the warrant. She stated that she had believed that was her constitutional right, adding:

STEPHENS: . . . If I had looked through the house and found [Clinton], I would have done what I did before, opened the door and let them in.

[STATE]: You're not saying that you were cooperative with the police officers on the different occasions that they had come to try to contact Mr. Clinton, are you?

STEPHENS: I was-I didn't have the opportunity to be cooperative on the second occasion. I was on the first one.

III VRP at 144.^[6]

The State proposed two jury instructions about police authority to serve an arrest warrant:

Jury Instruction 11

To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other [e]nclosure, if after notice of his office and purpose, he be refused admittance.

Jury Instruction 12

A valid misdemeanor arrest warrant gives police authority to enter a suspect's residence to make the arrest. The officer need not possess a physical copy of the warrant to make the arrest.

CP at 41-42.

Although initially equivocal about whether she opposed instruction 12, Stephens objected on the record to both jury instructions. She first objected to instruction 11:

I have some questions. I guess an objection as to the first one. . . . The second instruction [instruction 12] I think is appropriate, dealing with some of the issues that came up. Just to clarify the officer's authority [under instruction 12], whether Ms. Stephens believed it at the time or not. I think that's an appropriate instruction, given the case and the facts we've heard. But the other one [instruction 11], I just don't see the purpose in it.

III VRP at 160-61. The State responded that (1) instruction 11 mirrored RCW 10.31.040^[7] almost verbatim; and (2) it had proposed instruction 11 to make clear that the police can lawfully enter a residence to arrest on a warrant, stating, "With the arrest warrant, [police] can then enter the residence. . . . And, in fact, they could actually knock the door down, if need be." III VRP at 161.

Before ruling on instruction 11, the trial court asked if Stephens' counsel had "anything further." Her counsel responded: "No, Your Honor. I think it kind of encompasses the second instruction [instruction 12] though, where police have authority to enter a suspect's residence and make an arrest if they have a warrant." III VRP at 161. The following colloquy ensued:

THE COURT: I'm going to go ahead and give that proposed instruction [instruction 11]. It is-plainly it's a statement of the law given and it's out of the RCW. Is that a quote, I take it, from the RCW?

[STATE]: Yes. The first instruction [instruction 11] is exactly from [RCW] 10.31.040.

THE COURT: Okay. I think I understand why the State wants to offer it. I'm going to overrule the objection to that first supplemental instruction. And there's no objection to the second supplemental instruction?

III VRP at 162 (emphasis added.)

Stephens then objected to this "second supplemental instruction" 12^[8]:

[DEFENSE COUNSEL]: I do have a question on the

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