Argued January 22, 2013.
Appeal from Cowlitz County Superior Court. 09-1-01167-0. Honorable James J. Stonier.
Eric Broman (of Nielsen Broman & Koch PLLC), for petitioner.
Susan I. Baur, Prosecuting Attorney, and James Smith, Deputy, for respondent.
AUTHOR: Justice Susan Owens. WE CONCUR: Justice Charles W. Johnson, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Justice Steven C. González. AUTHOR: Charles K. Wiggins. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Sheryl Gordon McCloud
[180 Wn.2d 4] ¶ 1 Under the Sixth Amendment to the United States Constitution, criminal defendants have the right to confront the witnesses against them. However, if the defendant intentionally causes the absence of a witness from trial, he or she forfeits that right. As the esteemed Justice Tom Chambers wrote, " [W]e will not allow [the defendant] to complain that he was unable to confront [the witness] when [the defendant] bears responsibility for [the witness's] unavailability." State v. Mason, 160 Wn.2d 910, 925, 162 P.3d 396 (2007). Without such a forfeiture rule, defendants would have " an intolerable incentive ... to bribe, intimidate, or even kill witnesses against them." Giles v. California, 554 U.S. 353, 365, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).
¶ 2 In this case, Timothy John Dobbs engaged in a campaign of threats, harassment, and intimidation against [180 Wn.2d 5] his ex-girlfriend, C.R., that included a drive-by shooting at her home and warnings that she would " 'get it'" for calling the police and she would " regret it" if she pressed charges against him. 1 Verbatim Report of Proceedings (VRP) at 97, 123. As C.R. reported the increasingly violent activities of Dobbs against her, she explained to the police that she was terrified that she was going to wind up dead. After Dobbs was arrested, he made yet another intimidating phone call to C.R., threatening that if she went forward and pressed charges against him, she would regret it. When C.R. failed to show up to testify at trial, the trial judge found that there was clear, cogent, and convincing evidence that Dobbs was the cause of her absence and thus had forfeited his confrontation right. We agree. While Dobbs has the right to confront witnesses against him, he forfeited his right to confront C.R. when he chose to threaten her with violence for cooperating with the legal system. " To permit the defendant to profit from such conduct would be contrary to public policy, common sense and the underlying purpose of the confrontation clause." United
States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976).
¶ 3 The criminal charges in this case arose out of an escalating series of violent and threatening actions Dobbs took against C.R. shortly after the end of their relationship. On November 7, 2009, police were dispatched to C.R.'s residence in response to a domestic violence report shortly before 5:00 a.m. C.R. explained to the police officer that Dobbs had been following her and threatening to shoot her if she would not let him be her boyfriend anymore. C.R. indicated that Dobbs had just been at her residence beating on her door, wanting to come in. After they argued and she told him to leave, she heard a hissing noise outside and found that her tires had been slashed.
¶ 4 While the police officer was at her residence, C.R. received text messages and a phone call. She explained to [180 Wn.2d 6] the officer that they were from Dobbs, and she put the call on speakerphone so the officer could hear. The caller argued with C.R. about why she had called the police on him, reminded her that he had warned her about calling the police, and ended the call by telling her that she was going to " 'get it.'" 1 VRP at 97. C.R. told the officer that she believed Dobbs would hurt her, based on the earlier threats to shoot her and the fact that she knew he had a gun. She told the officer that Dobbs had told her that he was going to come back and shoot her house and everyone there.
¶ 5 On November 10, 2009, C.R. called James Applebury, her cousin's fiancé who lived in a house on the same property as C.R.'s residence. She told him that Dobbs was leaving and wanted to know if Applebury could confirm that Dobbs was gone. Applebury went to the window and saw a man resembling Dobbs in a car similar to one that he had seen Dobbs in previously. Shortly thereafter, the car pulled into the alley next to the property and Applebury heard gunshots from the alley. Applebury called the police, as did C.R., who reported that Dobbs had been stalking her and that he had recently been at her house. The officers who responded to the call found C.R. extremely fearful and upset. She told them that if Dobbs was not found, they were going to find her dead. The police later examined the outside of C.R.'s residence and found recent bullet holes. Based on the trajectory of the bullet holes, the police concluded that they came from the nearby alley. C.R. later played for police a voice mail from Dobbs that she received after the shooting. The police reported that the voice mail basically said, " 'You heard that. That was me and that's what I can do.'" Id. at 123.
¶ 6 Later that same evening, Applebury's fiancé e told him that Dobbs was back on the property. Applebury called the police and while he was talking to the dispatcher, C.R. ran into the house, screaming that Dobbs had a gun. Applebury looked across the yard through the open door to C.R.'s residence and saw Dobbs inside holding a gun. Dobbs [180 Wn.2d 7] then fled, jumping over the fence into the neighbor's yard. With the assistance of a K-9 unit, police tracked Dobbs to a nearby Laundromat, where he was arrested. The next morning, C.R.'s neighbor found a handgun in his yard and turned it over to the police.
¶ 7 When the police spoke with C.R. shortly after Dobbs had fled from her home, they reported that she was hysterical, upset, and fearful. She told them that Dobbs had been harassing and stalking her for two weeks. She explained that earlier that evening, he had pushed his way inside her residence and that he had a gun. She told the police, " 'I told you ... you were going to find me dead.'" Id. at 116. She also gave the police a note that Dobbs had left behind earlier that day which one of the police officers read into the record at trial:
" Last days. The countdown on your ... ass. You should know me by now [C.R.]. You fucked up and tripped with ... the wrong brother. You will regret what ... you did and said to me. You never loved me. You never cared about me and now you will reap a world of trouble and pain. Number 1, you can apologize to me and talk with me face-to-face or Number 2, you know you can't and won't be (inaudible) here in Longview or Washington. I'm going
all out on this with you. You're fucked up, bitch."
Id. at 120.
¶ 8 The following day, the police spoke with C.R. again and she played a voice mail that she had received from Dobbs from jail the night after he had been arrested. The police described the voice mail as Dobbs " essentially pleading with her not to go forward and not to press charges against him and it -- it kind of quickly turned into kind of a threatening of don't do this to me or -- or you'll regret it." Id. at 123.
¶ 9 C.R. also showed the police two text messages that she received the day of the shooting. The police photographed the messages and then read them aloud at trial. The first one said, " 'Next time it is you, bitch. On, Bloods.'" [180 Wn.2d 8] Id. at 126. The second one said, " 'Bitch, you move and there will be hell to pay. Plus, my bro lives down there and he's a known figure. You can't get away from me. I told you you're mines (sic).'" Id. at 126-27.
¶ 10 Prosecutors charged Dobbs with eight crimes, including stalking, harassment, and drive-by shooting. The bench trial began on January 25, 2010. C.R. was served with a subpoena, and the night before trial, an officer went to C.R.'s house to remind her to come to court the following morning to testify. The officer reported that C.R. responded " 'Okay'" and closed the door. Id. at 106. C.R. did not appear at trial the next day. Prosecutors and police attempted to contact her over the next couple of days but were unable to reach her. The judge eventually issued a formal warrant for C.R.'s arrest but she was not located and never appeared at trial.
¶ 11 The State asked the court to rule that Dobbs could not raise the issue of his confrontation rights because he had forfeited those rights by engaging in wrongdoing with the intent to prevent C.R. from testifying. The court agreed, ruling:
Clear, cogent and convincing evidence. I'm satisfied that there is a sufficient basis that the defendant's conduct is the fact to why she is not here. There is testimony that she felt he was -- the defendant was following her. She knew he carried a weapon. Others had seen a black handgun. She had threatened to -- he had threatened to shoot her in the past, if she wouldn't let him be her boyfriend. She said she was receiving text messages calling her names. There is evidence that -- I'm deciding this by clear, cogent and convincing evidence. I have not decided this case based upon beyond a reasonable doubt. So, that should be emphasized. There is the -- she believed it was the defendant that punctured her tires. She said she believed the defendant would -- he would hurt her because of what she had said in the -- because of what he had said in the past, she believed he would shoot her. He had a handgun. So, I think that based upon the evidence that is in front of this Court, it is clear, cogent and convincing that she was afraid of [180 Wn.2d 9] him and that's why she isn't here to testify. And, that based on that evidence, he does forfeit the right to object on the confrontation issues, not as to the basis for any hearsay.
2 VRP at 255-56.
¶ 12 The trial court then addressed whether the forfeiture of one's confrontation rights also waives one's hearsay objections. The court ruled that under State v. Fallentine, 149 Wn.App. 614, 215 P.3d 945 (2009), " there is also a waiver of hearsay objections if the Court finds forfeiture by wrongdoing." 2 VRP at 282.
¶ 13 The judge found Dobbs guilty of (1) stalking (domestic violence) with a deadly weapon enhancement, (2) felony harassment (domestic violence), (3) intimidating a witness (domestic violence), (4) drive-by shooting (domestic violence), (5) first degree unlawful possession of a firearm, and (6) obstructing a law enforcement officer.
¶ 14 Dobbs appealed and the Court of Appeals affirmed, holding that there was sufficient evidence that Dobbs intentionally engaged in misconduct to keep C.R. from testifying, including telling her she would die if she continued to cooperate with the police and then later, after he was arrested, threatening that she would regret it if she ...