Oral Argument, December 5, 2014.
Reconsideration denied April 23, 2015.
Appeal from Mason County Superior Court. Docket No: 12-1-00478-1. Judge signing: Honorable Toni a Sheldon. Judgment or order under review. Date filed: 05/28/2013.
Kathleen A. Shea (of Washington Appellate Project ), for appellant.
Michael K. Dorcy, Prosecuting Attorney, and Timothy J. Higgs, Deputy, for respondent.
Authored by Rich Melnick. Concurring: Lisa Worswick, Thomas R Bjorgen.
Rich Melnick, J.
[186 Wn.App. 309] [¶1] Michael E. McComas Jr. appeals his conviction of domestic violence assault in the fourth degree, arguing that the trial court erred by admitting the victim's recorded statement concerning the assault as substantive evidence under ER 801(d)(1)(i). Because the victim did not make her statement under oath, the court erred by admitting that statement as substantive evidence. However, we hold the error was harmless and we affirm McComas's conviction.
I. Substantive Facts
[¶2] On November 15, 2012, Philana McComas, while upset and crying, went to the Mason County Sheriff's Office and reported that her husband, Michael, had choked and hit her. Deputy Robert Noyes observed visible signs of injury on Philana, including abrasions on her neck, scratches on her chest, and a red area on her lower back.
[¶3] Later that afternoon, Deputy Justin Cotte went to the McComases' home and took an audio-recorded statement from Philana. She stated that Michael became angry that morning and screamed vulgarities at her. When she told him to calm down, he threw some dishes against the wall. Philana added that when she tried to grab her cell phone and leave, Michael attacked her, took her to the ground, and choked her. She said that she blacked out momentarily. She then ran out of the house. Because the police station was closed for lunch, Philana went to lunch with a friend before going back to the police station.
[¶4] At the end of her statement, Deputy Cotte asked Philana if she declared, under penalty of perjury, that " the foregoing is true and correct." Clerk's Papers (CP) at 66. Philana replied yes. The State subsequently charged Michael [186 Wn.App. 310] with domestic violence assault in the second degree by strangulation.
[¶5] In January 2013, Philana recanted her November statement. During a second interview with the police, she denied being strangled or choked. Philana said that she fell to the floor while trying to take an iPod from Michael. She added that her injuries resulted from Michael landing on top of her and their dog scratching her. Philana declined to allow her recantation to be recorded.
II. Pretrial Motion To Exclude Statement
[¶6] Before trial, the defense moved to exclude Philana's recorded statement as substantive evidence. At the hearing on that motion, Philana testified that she remembered giving a statement on November 15 but that she did not remember it being recorded. She also did not remember the deputy advising her that her statement was made under penalty of perjury. She added that she did not understand the word " perjury" until its meaning was explained two days before trial. Philana further testified that mental health issues contributed to her inability
to fully understand the nature of her recorded statement.
[¶7] The trial court found this testimony not credible. The trial court denied the defense motion. It entered written findings of fact and conclusions of law that admitted Philana's prior recorded statement as substantive evidence under ER 801(d)(1)(i) and State v. Smith, 97 Wn.2d 856, 857, 651 P.2d 207 (1982).
III. Trial Proceedings
[¶8] At trial, Philana testified that she awoke to Michael making noise. When she told him to settle down, he threw some dishes. When asked whether Michael had choked her, she replied, " There was dogs around and we were down on the ground." 2 Report of Proceedings (RP) at 71. She did not think that Michael choked her: " I think the dog had stepped on me or something like that." 2 RP at 71. She said that she [186 Wn.App. 311] blacked out because she was upset, and not because Michael choked her. She also acknowledged giving three statements about the episode.
[¶9] Deputy Noyes testified about the injuries he saw on Philana's neck, chest, and back when she came to the police station. The trial court admitted into evidence photographs of Philana's neck and chest injuries. Noyes also testified, over a defense objection, that Philana identified Michael as her ...