Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.
Prosecuting Atty King County, Erin Hairopoulos Becker, King County Prosecutors Office, Seattle, WA, for Respondent.
[178 Wn.App. 253] ¶ 1 As a matter of apparent first impression, we consider whether the exclusion of evidence of any person's other crimes, wrongs, or acts to show that he acted consistent with his character on a particular occasion, as required by ER 404(b), violates an accused's constitutional right to present a defense. Because ER 404(b) is neither arbitrary nor unreasonably related or disproportionate to the ends it is designed to serve, we reject the constitutional challenge to it.
¶ 2 Harold Donald appeals his convictions for first degree assault and attempted robbery. At trial, Donald argued that an accomplice, Lorenzo Leon, acting alone, committed the crimes. Donald contends that the trial court violated his constitutional right to present a defense by refusing to admit his proffered evidence of Leon's criminal history and mental health to support this defense. For the first time on appeal, Donald also alleges an instructional error. Because the court did not abuse its discretion by excluding Donald's [178 Wn.App. 254] proffered propensity evidence or evidence of Leon's mental illness and because he did not preserve the alleged instructional error for review, we affirm.
¶ 3 Harold Donald and Lorenzo Leon assaulted Gordon McWhirter one night as McWhirter stepped outside his apartment to smoke a cigarette. A neighbor called 911. When police responded, they found McWhirter lying in the grass, naked and bloody. His injuries included a lacerated spleen, several fractured ribs and facial bones, a fractured toe, and a serious head wound. Police followed a blood trail back to McWhirter's vehicle, where they discovered that someone had
broken into the vehicle and ripped out the ignition.
¶ 4 DNA (deoxyribonucleic acid) and fingerprint evidence connected both Donald and Leon to the attack. Donald denied knowing Leon and denied being in the area on the night of the attack. However, several of Donald's family and friends reported seeing the two men together on that day, and Donald's mother told police that Donald gave her a bathrobe matching the description of the one McWhirter had worn the night of the attack.
¶ 5 Leon pleaded guilty to one count of attempted robbery in the first degree. Although he agreed to testify against Donald, neither party offered his testimony at trial. The State tried Donald on charges of assault in the first degree, attempted robbery in the first degree, and possession of a stolen vehicle. Donald presented an alternate suspect defense, arguing that Leon alone committed the crimes. The court refused to allow Donald to present evidence of Leon's criminal history and limited the mental health history he sought to present to support this defense. Specifically, the court refused to allow evidence of Leon's prior convictions for violent crimes. It admitted some mental health evidence showing that Leon faked his mental illness but excluded [178 Wn.App. 255] evidence that Leon experienced " command hallucinations," in which a voice ordered him to hurt or kill people.
¶ 6 A jury convicted Donald of assault and attempted robbery. The court sentenced him to an exceptional sentence of 397 months, based partly on a rapid recidivism aggravator. Donald appeals.
STANDARD OF REVIEW
¶ 7 The parties dispute the proper standard for review. Donald asserts that this court should review the evidentiary issues de novo because the court's challenged rulings denied Donald his constitutional right to present a defense. The State counters that we should apply an abuse of discretion standard because the proper application of the rules of evidence involves the trial court's exercise of discretion. We do not resolve this dispute because the court did not err under either standard.
¶ 8 Donald contends that the court erred by excluding evidence relevant to his " other suspect" defense. Specifically, Donald offered— and the trial court rejected— evidence of Leon's extensive criminal history of violent crimes. He asserts the jury could have concluded from Leon's propensity to commit violent crimes that he acted alone when he assaulted McWhirter. Donald acknowledges that ER 404(b) bans this pure propensity evidence but argues that this ban impermissibly impairs his Sixth Amendment right to present a defense. We disagree.
¶ 9 We begin our analysis with some general observations about character evidence. Character evidence might be considered relevant on four theories: (1) as circumstantial evidence that a person acted on a particular occasion consistently with his character, often called propensity evidence; (2) to prove an essential element of a crime, claim, or defense; (3) to show the effect that information about one [178 Wn.App. 256] person had on another person's state of mind; and (4) other purposes, such as identity or lack of accident.  Application of the rules for character evidence depends in part upon the identity of the person the evidence relates to and his or her role in the lawsuit.
¶ 10 We next review the applicable Washington Rules of Evidence. ER 402 makes all relevant evidence admissible, unless a constitutional requirement, statute, rule, or regulation applicable in Washington State courts limits its admission. ER 401 defines " relevant evidence" as evidence having a tendency to make the existence of any fact consequential to the resolution of a lawsuit more or less probable than it would be without the evidence. ER 404 and ER 405 address the admissibility of character evidence for substantive purposes. ER 404 controls the admissibility of character evidence, and ER 405 controls the method of proving character when evidence of character is admissible. ER 608 and ER 609 address the admissibility
of character evidence to impeach a witness. Here, we need to consider only the rules for character evidence offered for substantive purposes.
¶ 11 ER 404 provides, RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the ...