En Banc. Dore, C.j. Brachtenbach, Andersen, Durham, and Guy, JJ., and Callow, J. Pro Tem., concur. Dolliver, J. (concurring in part, dissenting in part). Utter and Smith, JJ, concur with Dolliver, J. Johnson, J., did not participate in the disposition of this case.
Ray appeals his conviction of first degree incest because he alleges that the trial court erroneously suppressed the testimony of his defense witness, Bogart. We agree and reverse and remand for a new trial.
On March 19, 1987, John Miller called the police and reported that the previous evening he saw his father, defendant Ray, having anal intercourse with Miller's sister, D., in the bathroom. Miller later described to the police in a
written statement what he saw on the evening of March 18, and he told the police officer that he saw Ray fondle D. on other occasions.
When the police interviewed D., she denied that the incest occurred and suggested that Miller called the police because he was angry with Ray. D. later called the police, however, reported that the incest did occur, and agreed to submit a written statement.
D. told police that she moved into her father's home in January 1987. On March 18, D. went to the beach and when she returned home, went into the bathroom and took a shower. D. had just finished showering, and was brushing her teeth, when Ray came in. D. believed Ray wanted to shave, and let him into the room. Ray stood on one side of the sink and D. stood on the other. As D. put the cap on the toothpaste, her towel slipped off and Ray commented that D. "looked good" nude. When D. bent over to pick up the towel, Ray reached across and tried to place his finger in her rectum. D. stood up, put the towel around her and left the bathroom. As D. left the bathroom, she almost ran into Miller, who was standing outside the door.
Police interviewed Ray on April 1. Ray stated that on March 18, he got home from work, spoke with Miller about Miller's getting a job, then left for a 4 p.m. appointment. Ray returned from his appointment at approximately 5:30 p.m. and retired for the night before 10 p.m.
The State charged Ray with one count of incest in the first degree. Ray pleaded not guilty. In June 1987, Ray filed an omnibus application which stated that Ray might call Janet Bogart as a witness at trial. The police reports in the record state that: as of April 1, Bogart had been staying at Ray's house for approximately 2 weeks; she heard that Miller got mad at Ray and "reported something to the police to get even"; she heard that D. moved into Ray's home to spend time with him; and that Ray had not touched his other children except to spank them. Clerk's Papers, at 37.
In mid-July, D. and Miller separately called the prosecutor, informed him that they were living with their father, and asked that he drop the charges against Ray. On July 22, Miller and D., together, again called the prosecutor. They asked that the prosecutor drop the charges against Ray and that the prosecutor speak with Ray because he "refused to believe that [D.] and . . . Miller . . . tried to get the charges dropped. [D.] stated that . . . [Ray] was presently in the room . . . listening to . . . the conversation." Clerk's Papers, at 105-06. At trial, the State moved to exclude evidence of D.'s convictions for arson and for theft. Ray argued that the theft conviction was admissible to impeach D., because it went to D.'s credibility and honesty. The court concluded that theft was not a crime involving dishonesty, under ER 609(a)(2), and excluded evidence of D.'s theft conviction.
Ray moved to exclude evidence of prior incidents of sexual contact between himself and D. He alleged that the evidence was not relevant or admissible "under [ER] 402 . . . [or] 404(b)"; the prior acts were too remote in time from the incest alleged in 1987; and that there was no evidence of a common scheme or plan. Report of Proceedings, at 65. The court admitted the evidence of prior contact because it showed Ray's lustful disposition toward D.
On direct examination, Miller testified that he saw Ray have intercourse with D. On cross examination, Miller denied that he saw D. and Ray have intercourse; stated he could not see much of the bathroom from where he was standing; and testified that he called the police because he was upset with Ray. On redirect, Miller stated that he saw Ray "humping" D. and that the written statement he gave the police was true. Miller testified that he lied during cross examination, to protect his father. Report of Proceedings, at 36-39 (Sept. 8, 1987). On recross, Miller reaffirmed that he saw D. and Ray have intercourse.
D. testified that she lived with Ray until she was 8 years old. From age 8 to 17 years, D. lived with foster or adopted parents, and she and her brothers visited Ray. In January
1987, D. moved into Ray's home. During January and February, D. slept on Ray's couch. Some mornings, as Ray left for work, he rubbed D.'s breasts or buttocks. D. did not complain to anyone of Ray's behavior.
D. testified that on March 18, Ray entered the bathroom and had anal intercourse with her, as related in her statement to the police. D. acknowledged that she "went back and forth" about what occurred on March 18, but stated that she initially denied the incest because she was embarrassed and nervous. Report of Proceedings, at 94, 102, 110, 114, 120, 127 (Sept. 8, 1987). D. testified that she asked the prosecutor to drop the charges against Ray because she was scared.
D. recalled three earlier incidents of sexual contact with Ray. Before D. went into foster care, Ray picked her up and touched her "up top". Report of Proceedings, at 95-96. On another occasion, Ray took D. and her brothers to the movies. He sent the boys out to buy a snack, then pulled D. onto his lap and put his hand under her shirt. Finally, when D. was 9 or 10, and in foster care, she and her siblings visited Ray on weekends. When they visited, Ray gave each of the other children a treat, but usually hid D.'s treat in his bedroom, then followed her upstairs when she went to find it. Once, Ray sat on the bed next to D. and he touched her "on top" and "real quick" on her vagina. Report of Proceedings, at 100 (Sept. 8, 1987).
At the close of the State's case, the prosecutor interviewed Janet Bogart. The prosecutor reported to the court:
The defense provided me with a summary of their proposed witnesses' testimony . . . It recites Janet Bogart will testify she never saw Fred make any sexual advances or contact with [D.] and that she had a sexual relationship with Ray at the time he was supposed to have had contact with [D.].
I've just interviewed Bogart and she's now telling me that she was there that night, that she was a witness to all the events of that night, and is laying out in great detail what she said happened that night.
I'm asking that she not be allowed to testify . . . I'm . . . very surprised after my case is . . . complete, I find out . . . there's somebody who's going to be an alibi witness, basically.
Report of Proceedings, at 138, 140 (Sept. 8, 1987).
Defense counsel argued that Bogart's name was in the police reports, the prosecutor had the name and address, and that he could have spoken with her before the trial.
The court "assumed" Bogart would testify that she was in the house at the time "observing [D.] and [Ray] . . . in the bathroom" and that she "'[W]as there and observed the incident and . . . the sexual contact did not take place.'" Report of Proceedings, at 141, 143 (Sept. 8, 1987). The court found, however, that defendant's summary omitted crucial information, in violation of CrR 4.7, which governs discovery, and it suppressed Bogart's testimony.
Ray, the only defense witness, testified that on March 18, he finished work, paid some bills downtown, and got home at approximately 5:30 p.m. He, Bogart, Miller, and D. went to the beach together. When they returned from the beach, Ray made his lunch then sat in the living room with Miller, while D. showered. Bogart watched television in another room. Ray testified that he entered the bathroom after D. came out, that he and D. were never in the bathroom together, that he never saw D. nude, and that he retired soon after shaving. Ray did not recall any instances of sexual contact with D. and he denied leaving "treats" for D. in his bedroom.
The jury convicted Ray of first degree incest. Ray filed a "Motion for Arrest of Judgment and New Trial" in which he alleged that the trial court erroneously suppressed Bogart's testimony and that the suppression denied him a fair trial. Ray also argued that trial counsel's failure to
preserve Bogart's testimony denied him effective assistance of counsel.
Ray submitted the affidavit of Janet Bogart with his motion for new trial. In her affidavit, Bogart stated that she was in Ray's house and she remembered the evening of March 18. Bogart recalled that on March 18, she was in the living room playing cards and stated that she was aware, at all times, of where Ray and D. were. Bogart reported that D. and Ray were never in the bathroom together and that Ray entered the bathroom only after D. came out. Bogart stated that D. admitted that she lied to the police about the alleged incest and that she reported the incest to "get back at" Ray and to "show [Miller] how wrong he had been to call the police." Clerk's Papers, at 50. Bogart further stated that she gave Ray's trial attorney her phone number and offered to talk to him and that she overheard Ray tell his attorney that Bogart was available as a witness. Clerk's Papers, at 52. She reported that Ray's attorney spoke with her about the events disputed here "just for a few minutes before we went into the court room", but never before the trial began. Clerk's Papers, at 52.
The trial court acknowledged that it had a "general idea" of what defense counsel wanted Bogart to do, and assumed that Bogart would try to exonerate Ray "on the basis of . . . [being] an eyewitness to the situation", but stated that it did not have sufficient information to know "in detail" what Bogart's testimony would have been. Report of Proceedings, at 34 (Nov. 25, 1987). The court again refused to admit Bogart's testimony and it denied Ray's motion for new trial.
Suppression of Ray's Testimony
Superior Court Criminal Rule 4.7(b)(1) provides, in part, that:
[T]he defendant shall disclose to the prosecuting attorney the following material and information within the defendant's control no later than the omnibus hearing: the names and addresses of persons whom the defendant intends to call as
witnesses at the . . . trial, . . . and the substance of any oral statements of such witness.
CrR 4.7(h)(7) provides, in part, that:
(i) [I]f . . . during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule . . ., the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances.
(ii) [W]illful violation by counsel of an applicable discovery rule . . . may subject counsel to appropriate sanctions by the court.
 Suppression of evidence is not one of the sanctions available for failure to comply with discovery rules and the trial court, therefore, erred when it suppressed Bogart's testimony because the court believed Ray violated CrR 4.7(b). State v. Thacker, 94 Wash. 2d 276, 280, 616 P.2d 655 (1980).
[2, 3] The State contends, however, that even if the court improperly excluded Bogart's testimony, pursuant to CrR 4.7(h)(7), Ray did not make an adequate, timely offer of proof, as ER 103(a)(2) requires when error is predicated on a ruling that excludes evidence. Absent an adequate offer of proof, the State argues, this court cannot review the propriety of the court's suppression order. An offer of proof serves three purposes: it informs the court of the legal theory under which the offered evidence is admissible; it informs the judge of the specific nature of the offered evidence so that the court can assess its admissibility; and it creates a record adequate for review. Mad River Orchard Co. v. Krack Corp., 89 Wash. 2d 535, 537, 573 P.2d 796 (1978); State v. Negrin, 37 Wash. App. 516, 525, 681 P.2d 1287, review denied, 102 Wash. 2d 1002 (1984). See also State v. Williams, 34 Wash. 2d 367, 384, 386-87, 209 P.2d 331 (1949). The offer of proof allows the trial court to properly exercise its discretion when reviewing, "revaluating [ sic ]", and, if necessary, revising its rulings. Cameron v. Boone, 62 Wash. 2d 420, 425,
383 P.2d 277 (1963). It is the duty of a party offering evidence
to make clear to the trial court what it is that he offers in proof, and the reason why he deems the offer admissible over the objections of his opponent, so that the court may make an informed ruling . . . .
Mad River Orchard Co. v. Krack Corp., 89 Wash. 2d 535, 537, 573 P.2d 796 (1978) (quoting Tomlinson v. Bean, 26 Wash. 2d 354, 361, 173 P.2d 972 (1946)). An offer of proof is not required, however, if the substance of the excluded evidence is apparent from the record. See Williams, at 384, 386; ER 103(a)(2). Federal courts, interpreting identical language in Fed. R. Evid. 103, have also concluded that if the substance of the excluded evidence is apparent either from the questions asked, the context in which the questions are asked, "or otherwise", then a formal offer of proof is not necessary. United States v. Nevitt, 5 ...