State Of Washington, Respondent V. Barbara Ann Clayton, Appellant (Majority)
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ED COURT OF APPEALS CRT O' rIS! O,; 1! ZQ( rI MAY 13 IN THE COURT OF APPEALS OF THE STATE OF C WASR AN 9: 15 tf 5 DIVISION II No. 43240 -4 -II STATE OF WASHINGTON, Respondent, UNPUBLISHED OPINION BARBARA ANN CLAYTON, Appellant. MELNICK, J. Barbara Clayton appeals her convictions for second degree murder, malicious mischief, and unlawful possession of a sentence as a persistent offender under when it excluded evidence relevant RCW firearm. She also appeals her judgment and 9. 94A. 570. She argues that ( 1) the trial court erred to her defense, ( 2) the trial court violated her right to be free from double jeopardy when it merged her two murder convictions instead of vacating one of the convictions, 3) and ( We hold that ( 1) the trial court reasonably excluded the challenged evidence, protection rights. 2) the trial persistent Clayton' her persistent offender sentence violates her due process and equal court offender by not sentence did erred s convictions for second vacating not one violate degree of due Clayton' s process and murder ( count murder equal convictions, protection. and ( 3) her We affirm I), unlawful possession of a firearm, and malicious mischief We remand the case to the trial court with direction to strike her second degree felony murder (count II) from the judgment and sentence. FACTS On April 1, 2011, Clayton Clayton' s minor shooting, shot and daughter, had been Clayton and living killed her boyfriend, Curtis Giffin. together for Giffin had been arguing over several years. Giffin' s seeing They, along with In the months before the another woman. 43240 - -II 4 Before the shooting, Clayton separate cars. Clayton then " Proceedings ( RP) Giffin her rammed" argued in into Giffin' car parking lot. a s car and Both parties entered drove off. 4 Report of Clayton returned to their home, told her daughter to pack her 126. at and belongings, and said that they were leaving because Giffin had impregnated another woman. Clayton also retrieved a gun and placed approximately 10 minutes later and it under a couch cushion. began arguing with Clayton. Giffin arrived at the house Clayton obtained the gun and shot Giffin approximately four times. He died at the scene. The State charged Clayton with premeditated first degree murder ( count I) and second degree felony murder ( count alleged that the shooting occurred within the II). was a The State charged firearm enhancements for both counts and domestic sight or sound of incident. It further alleged the incident minor child. The State also charged Clayton violence Clayton' s with first degree unlawful possession of a firearm; and, for the car ramming incident, second degree malicious mischief. Clayton pleaded not guilty by reason of insanity. Prior to trial, Clayton was interviewed by a psychologist, Dr. Donald Dutton, who diagnosed her as suffering from borderline personality disorder. Dutton believed that, at the time of the shooting, Clayton was in a transient psychotic state. He opined that Clayton felt a sense of abandonment that caused her to become extremely anxious and panicked. Dutton based his opinions on his own interviews with Clayton, police reports, psychological tests, Clayton' s journal entries, and Clayton' s phone calls from jail. The State moved to prohibit Dutton from testifying about specific acts of domestic violence involving Clayton and Giffin that occurred prior to the shooting. The trial court granted the motion because Dutton did not know when the events had occurred and because no corroborating evidence existed. The court held that the danger of unfair prejudice outweighed 2 43240 -4 -II the probative of value the evidence. It also found a high risk of misleading the jury and confusing the issues. The trial court permitted Dutton to testify about numerous events Clayton apprised him of, including her recollection of the day of the shooting; her early years growing up in California, including childhood traumas and abusive family relationships; her relationship history with other men, including their jealousies, control issues, and physical abuse perpetration; and, her history of parenting, including financial hardship and homelessness. Dutton could also testify about Clayton' s perceptions of her relationship with Giffin, which included his being argumentative, abusive, violent, and an excessive alcohol user, as well as Clayton' s daughter' s observations about ongoing domestic violence between Clayton and Giffin and how Clayton would sometimes Additionally, Dutton could testify about psychological testing he performed and the fight back. bases for his diagnosis. The State also moved to prohibit Clayton from introducing her post -arrest statements in the State' s case -in-chief. The trial court granted the motion and held the statements were hearsay that did not fit within any exception. The jury found Clayton guilty of the lesser included charge of second degree murder count I), second degree malicious mischief. and that the second felony murder ( count The jury also found that she was armed with a firearm during the murder murder was an aggravated degree II), unlawful possession of a firearm, and domestic murder conviction ( count violence offense. I) because it violated Clayton moved to vacate her double jeopardy. The trial court merged count II, felony murder, into count I, second degree murder, for purposes of sentencing and noted this on the judgment and sentence. The court also merged the firearm enhancements. 3 43240 -4 -II The trial court found that Clayton was a persistent offender and sentenced her to life without parole. Clayton appeals. ANALYSIS I. EVIDENTIARY RULINGS Clayton first argues that several of the trial court' s evidentiary rulings deprived her of the right to present a defense. Because the court did not abuse its discretion, we affirm. A criminal defendant has a constitutional right to present relevant, admissible evidence in her defense. State v. Rehak, 67 Wn. App. 157, 162, 834 P. 2d 651 ( 1992). But this right is not absolute. Rehak, 67 Wn. App. at 162. The decision to admit or exclude evidence lies within the sound abuse discretion of of the trial discretion unreasonable or court. exists "[ based State v. Neal, 144 Wn.2d 600, 609, 30 P. 3d 1255 ( 2001). An w]hen a trial court's exercise of its discretion is manifestly upon untenable grounds Neal, 144 Wn.2d at 609 ( quoting or reasons." State v. Stenson, 132 Wn.2d 668, 701, 940 P. 2d 1239 ( 1997)). Psychologist' s Testimony A. Clayton asserts that the trial court erred when it prohibited Dutton from providing hearsay testimony about specific instances of abuse between Clayton and Giffin. We disagree. Generally, hearsay ER is inadmissible. evidence 802. An expert may rely on inadmissible evidence as a basis for an opinion or inference if the facts or data utilized are the type reasonably relied on by experts in that particular field for forming opinions. ER 703. An expert may testify in terms of opinion or inference and the reasons behind it without prior disclosure excluded of the underlying if the danger facts of unfair or data. prejudice, ER 705. Additionally, relevant evidence may be confusion substantially outweighs its probative value. ER 403. 4 of the issues, or misleading the jury 43240 -4 -II Here, Clayton argues that the statements were admissible under ER 703 and 705. But the trial court concluded that the risk of confusing and misleading the jury outweighed the relevance of the Because Dutton did not know when the incidents occurred, the trial court was evidence. concerned that the jury might be misled into believing that the incidents had resulted in the shooting or that the shooting had been in self defense, something Clayton had not raised. Her sole defense was insanity. Moreover, the trial court allowed Dutton to make general references to Clayton' s allegations of abuse against Giffin. Dutton referenced Giffin and Clayton' s abusive relationship and how it related to his findings regarding her mental state at the time of the shooting. Consequently, Dutton explained to the jury the reasoning used to arrive at his opinion. And Clayton did present specific instances of abuse through the testimony of her daughter, who of witnessed some the incidents. For the preceding reasons, the trial court did not abuse its discretion and there is no error. Clayton' s Post Arrest Statements B. Clayton next argues that the trial court erred when it excluded her post arrest statements as hearsay because they were admissible under the state of mind hearsay exception. Because the statements related to Giffin' s actions rather than to Clayton' s state of mind, the state of mind hearsay exception does not apply and we affirm. Generally, a defendant' s self serving out -of court statements are not admissible in the State' chief as s case -in - to the admissible as to the hearsay rule, when offered on his behalf. State v. To be admissible, they must fit within an App. 783, 787, 582 P. 2d 569 ( 1978). rule. An out -of court statement of the declarant' s then existing state of mind is - Bennett, 20 Wn. exception an exception a hearsay exception. ER 803( 5 a)( 3). However, a declarant' s out - - ourt of c 43240 -4 -II statements are inadmissible when they relate to the conduct of another person who may have the declarant' s created state of mind. ER 803( a)( 3). State v. Sublett, 156 Wn. App. 160, 199, 231 P. 3d 231 ( 2010). In this case, Clayton contends that the trial court erred by excluding her out -of court statements about past incidents domestic of violence. The proffered statements were made after the shooting and after Clayton drank a large amount of alcohol and was admitted to the hospital. The officer who accompanied his Negro and slave "; "[ threw it bad." t] hat at me "; "[ her to the hospital heard her mother h] e RP ( Dec. 2, 2011) was at fucker kicked the 71. me so worst of anyone hard in my make with the following comments: " his boot "; "[ h] e entire life "; and I was picked up an axe " I' ve been beat up so Clayton argues that these statements are admissible under the state of mind hearsay exception. Because Clayton' s statements at the hospital described Giffin' s past conduct and did not reflect her state of mind, they were inadmissible. ER 803( a)( 3); Sublett, 156 Wn. App. at 199. The trial court did not err when it excluded Clayton' s statements at the hospital as hearsay. C. Impeachment Next, Clayton argues that the trial court erred when it prohibited her from impeaching a witness' s testimony. Because Clayton failed to make an offer of proof, this issue is not preserved for appeal. The State called Joann Rardin, who testified about Clayton and Giffin' s argument and car wreck police. in the parking lot. Clayton attempted to impeach Rardin with her prior statement to Not satisfied with Rardin' s answers on cross examination, Clayton then attempted to impeach Rardin through the responding officer' s testimony. The State objected that the officer' s testimony regarding Rardin' s statements constituted impeachment on a collateral matter, and the 6 43240 - -II 4 trial court upheld the objection. Because the police officer was not able to testify about Rardin' s statements and because Clayton did not make an offer of proof, this issue is not preserved for appeal. ER 103( a)( 2). For a prior statement to be admissible for impeachment purposes, the statement must be inconsistent with the witness' s in - ourt testimony. State v. Newl ern, 95 Wn. App. 277, 294, 975 c P. 2d 1041 ( 1999). Here, as the State points out, it is not possible to determine whether Rardin' s statements at trial were inconsistent with her prior statements to police because the defense never made an offer of proof. ER 103( a)( 2) requires that a party make an offer of proof where error is predicated on a ruling excluding evidence. Because Clayton failed to make an offer of proof, this issue is not preserved for appeal. II. DOUBLE JEOPARDY Clayton next argues that the trial court violated her right to be free from double jeopardy by merging her murder convictions rather than striking one of them from her judgment and sentence. We agree. Double 169 Wn. App. jeopardy violations are questions of 797, 832, 282 P. 3d 126 ( 2012), law that review we review de novo. State v. Fuller, denied, 176 Wn.2d 1006 ( 2013). The state and federal constitutions prohibit a defendant from being punished multiple times for the same offense. State WASH. CONST. v. Turner, 169 Wn.2d 448, 454, 238 P. 3d 461 ( 2010); U.S. CONST. amend. V; art. I, ยง 9. constitute " punishment" State v. A conviction alone, even without an accompanying sentence, may in the double jeopardy context. Turner, 169 Wn.2d at 454 -55 ( citing Womac, 160 Wn.2d 643, 657, 160 P. 3d 40 ( 2007)). defendant guilty of multiple alternative means of Accordingly, where a jury finds the committing a crime, the trial court "' should enter a judgment on the greater offense only and sentence the defendant on that charge without 7 43240 -4 -II reference to the verdict on the lesser Turner, 169 Wn.2d offense.' 463 ( at quoting State v. Trujillo, 112 Wn. App. 390, 411, 49 P. 3d 935 ( 2002)). In Fuller, we determined that the trial court did not violate the defendant' s right to be free from double jeopardy where it merged the defendant' s two murder convictions at sentencing and included only in the judgment one conviction and sentence. 169 Wn. App. at 835. There, the trial court entered a judgment stating that the defendant was guilty of only one count of murder and sentenced him to only judgment and defendant' s right trial listed both court sentence at reference not merged counts on court the sentence offense, ' 169 Wn.2d did count of murder. to be free from double Because the trial lesser one did the other jeopardy. murder 835. at Because the it did not violate the App. at 835. But, here, the 1 sentence. Clayton "` without reference to the verdict on the Clayton' s 463 ( quoting Trujillo, 112 Wn. App. verdict, Fuller, 169 Wn. the judgment and not sentence violates Fuller, 169 Wn. right App. at to be free from double 411). jeopardy. Turner, And we remand to the trial court to strike her second degree felony murder conviction, count II, from the judgment and sentence. PERSISTENT OFFENDER SENTENCE III. Finally, Clayton argues that her due process and equal protection rights were violated when the trial court sentenced her as a persistent offender because her prior convictions were not proved to a jury. Washington courts have already rejected these same arguments; therefore, there is no error. Our Supreme Court has rejected Clayton' s due process argument based on binding authority. State federal and state by Supreme Court' 1 our The judgment v. s precedent. and sentence lists Wheeler, 145 Wn.2d 116, 34 P. 3d 799 ( 2001). We are bound State v. McKague, 159 Wn. App. 489, 514, 246 P. 3d 558 count II and states, " 8 Merged into Count I." CP at 253. 43240 - 4 II 2011). Similarly, we have previously rejected Clayton' s equal protection argument in State v. Reyes -Brooks, 165 Wn. App. 193, 207, 267 P. 3d 465 ( 2011), and State v. Williams, 156 Wn. App. 482, 496 -98, 234 P. 3d 1174 ( 2010). We of a affirm firearm, Clayton' s convictions and malicious mischief. for second degree murder ( count I), unlawful possession We remand the case to the trial court with direction to strike second degree felony murder (count II) from the judgment and sentence. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: 9
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