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State v. McDaniel

August 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
SHAWN KERRY MCDANIEL, APPELLANT.



Superior Court County: King. Superior Court Cause No: 90-1-03809-9-SEA. Date filed in Superior Court: 2/8/95. Superior Court Judge Signing: Liem Tuai.

Written by: Kennedy, Acj. Concurred by: Becker, J., Ellington, J.

The opinion of the court was delivered by: Kennedy

KENNEDY, A.C.J. -- Shawn McDaniel appeals his convictions of one count of second degree assault of Erlasu Graham and one count of fourth degree assault of John Bothwell. With respect to the second degree assault conviction, McDaniel contends that the trial court violated his constitutional right to confrontation by limiting the scope of cross examination to exclude evidence that Erlasu Graham had recently admitting lying under oath in a related civil proceeding about the recency of her drug use, and to exclude evidence that Erlasu had a motive to lie in the criminal proceeding about her drug use on the day of the assault because she was on probation after having been convicted of possession of cocaine, and because one of the conditions of her probation was that she not use illegal drugs. We agree with these contentions and accordingly reverse McDaniel's conviction of second degree assault, and remand for a new trial on that count. McDaniel's conviction of fourth degree assault is affirmed. *fn1

FACTS

In the spring of 1990, Erlasu Graham and John Bothwell shared an apartment in a building owned by Gene McDaniel, the appellant's father. On March 19 or 20, 1990, Gene had an eviction notice served on Graham and Bothwell. On March 21, 1990, Bothwell went to Gene's office to discuss the eviction notice. An argument over the eviction ensued. A physical altercation broke out. Bothwell testified that he was attacked by appellant McDaniel and by another man, Ron Fox.

Erlasu Graham testified that when she arrived home from work at about 5 p.m. on March 21, 1990, appellant McDaniel, Ron Fox, and Robert Jobes blocked her entry into the apartments and harassed her. When she was able to get by them, Graham proceeded up to her apartment, changed her clothes, and then left again to view a nearby apartment. Returning a few minutes later, Graham heard sounds of violence coming from Gene McDaniel's office. When she tried to enter the office to check on Bothwell, appellant McDaniel and Fox blocked her entry. Graham then tried to call 911 on the lobby telephone, but before she could complete the call, Jobes disconnected the phone.

Graham testified that Jobes struck her from behind and that she fell to the ground. Graham testified that appellant McDaniel then kicked her several times in the face, ribs, and back. Graham testified that she heard appellant McDaniel say, "You didn't think we'd do it." Vol. 4, Report of Proceedings at 16. Graham was later hospitalized and treated for a fractured lower jaw and a nasal fracture.

McDaniel and co-defendant Jobes were charged with second degree assault of Graham. By the same Information, McDaniel and co-defendant Fox were charged with fourth degree assault of Bothwell. McDaniel's jury trial commenced on January 24, 1991. Prior to the taking of testimony, the State brought a motion in limine to suppress all reference to prior bad acts of the victims, including instances of past drug usage. The State argued that suppression was proper because there was no reliable evidence that either victim was affected by drugs on March 21, 1990. The trial court granted the State's motion suppressing evidence of past drug usage by the victims, but held that it would permit testimony regarding witnesses' observations of the physical appearance of Bothwell and Graham on the day in question.

The State brought a second motion in limine seeking to suppress evidence of past convictions of McDaniel and both victims under ER 609. *fn2 Counsel for McDaniel agreed to a stipulation that none of the past convictions were admissible, and the trial court accepted the stipulation, ruling that none of the convictions shed any light on credibility of the witnesses.

McDaniel presented different defenses to the two assault charges. With respect to the charge of fourth degree assault, McDaniel maintained that he acted in self defense when Bothwell initiated a fight while in a drug-induced rage. With respect to the charge of second degree assault, McDaniel maintained that he never had any contact with Graham, and that co-defendant Jobes was responsible for her injuries.

During Graham's testimony, counsel for defendant Fox requested clarification regarding whether the defendants could impeach Graham by raising her admission that she had lied about the recency of her drug use during her deposition in a related civil suit. *fn3 McDaniel joined in Fox's request. The court refused to allow the defendants to impeach Graham with her admission that she had lied under oath, stating: "It is inappropriate unless it is shown that she was under the influence at the time of the alleged incident." Vol. 3 Report of Proceedings at 67.

On the fifth day of trial, the trial court reversed its earlier ruling suppressing evidence of prior drug usage by Graham and Bothwell. The trial court permitted the defense to present the testimony of David Musick, who testified to having frequently used drugs with Graham and Bothwell through late February or early March of 1990. Musick testified, though, that he had no knowledge of what happened on March 21, 1990.

The defense also presented the testimony of Dr. Lawrence Halpern, a professor of pharmacology at the University of Washington. Based on the testimony that on the day of the alleged assault Bothwell exhibited agitation, anxiety, mood swings, inability to carry on a conversation, enlarged pupils, feelings of persecution, and a high strung voice, Dr. Halpern concluded:

The use of cocaine one time might produce some of those effects, but paranoia would not be from the use of cocaine one time. The paranoia more than likely would be present after repeated use of cocaine, leading to misperceptions of reality, with paranoia breaking out at the end. As I said earlier, it is part of this stage toxicity with cocaine, so this does not tell us that these people had used drugs that day, and the drug was responsible for these signs. What it suggests to me is the drug had been used for some period of time and ...


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