Argued January 15, 2013.
Reconsideration denied June 17, 2014.
Steven Witchley (of Holmes & Witchley PLLC ), for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Andrea R. Vitalich and James M. Whisman, Deputies, for respondent.
AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez.
[180 Wn.2d 372] Gordon
¶ 1 The trial court excluded defendant Andre Franklin's proffered evidence that someone else committed the cyberstalking-related crimes with which he was charged. Specifically, it excluded evidence that Franklin's live-in girl friend Rasheena Hibbler had sent threatening e-mails to his other girl friend Nanette Fuerte despite the fact that Hibbler had the motive (jealousy), the means (access to the computer and e-mail accounts at issue), and the prior history (of sending earlier threatening e-mails to Fuerte regarding her relationship with Franklin) to support Franklin's theory of the case.
¶ 2 The trial court reasoned that this was " other suspect" evidence, and that such evidence is inadmissible unless it [180 Wn.2d 373] overcomes a " high" bar. Partial Report of Proceedings (RP) (June 22, 2009) at 10. The trial court clearly meant a bar higher than the relevance, foundation, and similar prerequisites to admissibility established by Washington's Rules of Evidence (ER); the trial court meant that it could consider all the other evidence of Franklin's guilt and exclude the " other suspect" evidence because the other proof of the defendant's guilt was great.
¶ 3 We reverse. First, the United States Constitution bars the trial court from considering the strength or weakness of the State's case in deciding whether to exclude defense-proffered other suspect evidence. The United States Supreme Court expressly reiterated this rule not long ago in Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). Second, Washington law reinforces this constitutional mandate. We have never adopted a per se rule against admitting circumstantial evidence of another person's motive, ability, or opportunity. Instead, our cases hold that if there is an adequate nexus between the alleged other suspect and the crime, such evidence should be admitted. The trial court violated both of these rules: it considered the strength of the State's case against the defendant and it applied a per se standard to exclude the other suspect evidence. Thus, its exclusion of the proffered other suspect evidence was error under both our case law and our constitution.
¶ 4 Franklin had a romantic relationship with two women. Fuerte and Franklin began an intermittent romantic relationship while working together during the fall of 2005; it lasted until late 2008. Meanwhile, Franklin lived with Hibbler and Hibbler disapproved of Franklin's relationship with Fuerte.
¶ 5 Things deteriorated between Franklin and Fuerte in October 2008, after Fuerte borrowed $ 3,000 from Franklin [180 Wn.2d 374] to cover an unexpected expense. The two agreed in writing that she would pay him back on November 26, 2008. On November 6, 2008, Franklin showed up at Fuerte's home uninvited. Fuerte and a male friend were watching a movie. Fuerte did not invite Franklin in but did talk with him outside for a few hours. At trial, she testified that Franklin seemed upset that she had another man at her house.
¶ 6 The next night, Fuerte began receiving numerous lewd calls and texts from numbers that she did not recognize. Fuerte eventually discovered that the callers were responding to a Craigslist ad urging readers to contact Fuerte for sexual favors. In total, she received between 75 and 100 calls or texts from the ad posting.
¶ 7 Then, on November 8, 2008, Franklin interrupted Fuerte's dinner at a restaurant,
threatened to tell her employers " exactly what type of person" she was, and demanded the money she owed him. RP (June 29, 2009) at 37. Franklin left after Fuerte told him she would pay him back the following Monday.
¶ 8 But on Monday, Fuerte began receiving e-mails from a new personal e-mail account, firstname.lastname@example.org, to set up a time for her to deliver the payment. The e-mail stated, " [I]f I was u[,] i would stop playing gamez." Ex. 40. Fuerte replied that she was not playing games and that she was trying to get the money. The response she received stated,
[C]ommunication is key...u friday then u said monday @ noon. u asked me 2 b patient I no longer have any patients for u and Ur games. the way i c it is that u are useing my money 2 go out and have fun while i am working hard 2 save money...u have till 1pm then u know what will happen.
¶ 9 Soon after the above e-mail, Fuerte received another e-mail that contained a copy of a new Craigslist ad. That new ad listed Fuerte's name and work phone number and asked readers to tell Fuerte what they would like to do to [180 Wn.2d 375] her. Two sexually explicit photos of Fuerte were attached to the e-mail, one of which also featured Franklin.
¶ 10 Fuerte testified that she eventually cashed a $ 3,000 check and met Franklin at his home to deliver it. Fuerte testified that Franklin laughed at her when she gave him the money and that he stated, " [D]o you think this is the end of it? This is just the beginning." RP (June 29, 2009) at 51.
¶ 11 Later that day, Fuerte received an additional e-mail from the time4gamez account: " [S]o r u going to play my game or not?" Ex. 42. This was followed by another threatening e-mail. The next day, Fuerte received another e-mail containing the same proposed Craigslist ad ...