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State v. Lee

Supreme Court of Washington, En Banc

June 15, 2017

STATE OF WASHINGTON, Respondent,
v.
DONALD ORMAND LEE, Petitioner.

          FAIRHURST, C.J.

         Donald Ormand Lee was convicted on two counts of third degree rape of a child. RCW 9A.44.079. Before trial, Lee moved to cross-examine the victim, J.W., about a prior false rape accusation she had made against another person, The trial court permitted Lee to ask J.W. if she had made a false accusation to police about another person, but it prevented Lee from specifying that the prior accusation was a rape accusation. Lee claims this violated his confrontation clause rights. U.S. Const, amend. VI. Lee also contends the four year delay between his initial arrest and the trial constitutes a manifest constitutional error warranting review for the first time on appeal. Lastly, Lee challenges the trial court's imposition of legal financial obligations (LFOs).

         Because the State's legitimate interests in excluding prejudicial evidence and protecting sexual assault victims outweighs Lee's need to present evidence with minimal probative value, the trial court did not abuse its discretion when it prevented Lee from specifying that J.W. had falsely accused another person of rape. When the court permitted Lee to cross-examine J.W. about her prior false accusation, it provided Lee with an adequate opportunity for confrontation. Limiting the scope of that cross-examination was within the court's discretion. Further, because Lee was not actually restrained and because charges had not been filed, the four year delay between his initial arrest and the trial is not a manifest constitutional error warranting review for the first time on appeal.

         We therefore affirm the Court of Appeals in part. However, we remand the case for consideration of Lee's ability to pay LFOs.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On October 9, 2009, Lee was arrested on suspicion of third degree rape of a child. The victim, J.W., told police she engaged in various sex acts with Lee, whom she knew only as '"Rick, "' during the summer of 2008. Clerk's Papers (CP) at 1. On October 14, 2009, the court released Lee because no charges were filed.

         For the next two and a half years, Lee's case "fell through the cracks." IB Report of Proceedings (RP) (Part B, Dec. 19, 2013) at 201. The Kelso Police Department initially investigated the allegations, but transferred the case to the Cowlitz County Sheriffs Office after determining it was outside the city's jurisdiction. The sheriffs office received the report from the Kelso Police Department in March 2009. A detective did some "sporadic" work on the case but retired in April 2010. Id. Lee's case then went unnoticed until May 2012, when Detective Brad Thurman discovered it while reviewing unassigned cases.

         In March 2013, Lee was arrested again on suspicion of third degree rape of a child based on the same allegations from 2009. On March 6, 2013, the State charged Lee with five counts of third degree rape of a child. RCW 9A.44.079. Each count alleged Lee engaged in sexual intercourse with J.W., age 15, between June and October 2008. Each count also alleged as an aggravating factor that the offense "was part of an ongoing pattern of sexual abuse of the same victim . . . manifested by multiple incidents over a prolonged period of time." CP at 6-8; RCW 9.94A.535(3)(g). Lee pleaded not guilty. The trial commenced on December 18, 2013.

         Before trial, Lee moved to introduce evidence that J. W. previously fabricated a rape allegation against another individual. A police report showed that on June 11, 2008, J.W. and her mother called the Kelso Police Department, alleging that J.W. had been raped by a classmate. The next day, J.W. and her mother called again to explain that J.W. "had made up the story regarding the rape" and that the sex "was consensual." CP at 17.

         The trial court speculated that J.W.'s prior false statement is admissible under ER 608[1] to demonstrate J.W.'s character for untruthfulness but also potentially prohibited by the rape shield statute as past sexual behavior: "So, you know, part of me says, under ER 608 it comes in, but under the rape shield statute, part of me says it should not come in. So I'm a little bit unsure." A RP (Dec. 18, 2013) at 29. To strike a "fair balance between those two competing interests, " the court permitted Lee to ask J.W. if she had made a prior false accusation about another person to police. Id. at 33. However, the court prohibited Lee from specifying that it was a rape accusation or mentioning any past sexual behavior:

[A]s far as the issue of [J.W.] . . . making a ~ a false accusation about being -- to the police, I'm going to allow that, that she made a false accusation about another person to the police. The cross examination or the redirect, however it comes out[, ] would be limited in that she could talk about her motivations, maybe she was scared, uncertain and she promptly rectified it the very next day and there will be no mention of any . .. sexual conduct in ~ in any way.

Id.

         J.W. was the State's main witness at trial. J.W. testified that in June 2008, she received an unusual phone call from a man identifying himself as '"Rick."' Id. at 57. J.W. later identified the defendant as "Rick, " explaining she never knew him as Lee. Id. at 61. Lee asked to meet J.W. in person and gave her his telephone number. J.W. agreed to meet Lee at Tarn O'Shanter Park in Kelso, Washington.

         After their first meeting at Tarn O'Shanter Park, J.W. testified she and Lee began having regular sexual interactions. Typically, Lee would pick up J.W. after summer school and drive somewhere to engage in oral and vaginal sex. J.W. testified she would also perform oral sex on Lee while he drove. Lee always drove the same black Camaro or Thunderbird. They would usually go to either Tarn O'Shanter Park or Riverside Park. On one occasion, they went to a residence in Castle Rock that Lee claimed was his ex-girlfriend's house. J.W. remembered petting two cats at the Castle Rock house. J.W. also remembered visiting the residence that Lee shared with his mother.

         J.W. met Lee almost every day after summer school from June through September 2008. They did not have sex every day, but J.W. estimated they had sex "more than ten [but] less than thirty" times during that summer. Id. at 82. J.W. provided specific details for some of these interactions. For example, J.W. testified Lee has a tattoo on his chest or shoulder and another tattoo on his arm.

         J.W. testified that she was 15 years old at the time. Lee, then 42 years old, told J.W. he was "concerned" that he "would get in trouble" due to the age difference. Id. at 64. Lee often told J.W. not to tell anyone about their relationship so he would not "'get in trouble.'" Id. at 83. J.W. testified that Lee never wanted to go out to eat in public or go out with other couples. Lee bought cigarettes for J.W., telling her '"If I buy you these, you need to ... promise'" not to "tell anyone about our relationship." Id. at 80.

         J.W. testified she would frequently write notes to Lee. J.W. asked Lee to write her letters in return, but he gave her only one letter. J.W. kept the letter "for a while" because "[i]t had meant something" to her. Id. at 86. J.W. eventually gave the letter to an investigating officer, and the State introduced it at trial. Before trial, Lee stipulated that he wrote the letter. The letter does not address J.W. by name and is addressed to "My friend/love." Ex. 1. In the letter, Lee describes specific sex acts he enjoys with the recipient. See, e.g., id. ("I always love making love to you."). Lee also expresses a desire to try other sex acts in the future, such as anal sex. Id. Generally, the letter details Lee's feelings for the recipient and his desire for a relationship with her.[2]

         J.W. testified her relationship with Lee ended in September 2008. J.W. told her mother about the relationship in early 2009. J.W.'s mother reported the relationship to police. J.W. told police about the relationship and provided the letter she received from Lee. J.W. later identified "Rick" in a photo lineup. 1A RP (Dec. 18, 2013) at 91; Ex. 2. J.W. also showed police the various locations she would meet Lee and have sex with him.

         During cross-examination, defense counsel asked J.W. if she had "ever made any false accusations about another person to the police." 1A RP (Dec. 18, 2013) at 120. J.W. responded, "Yes." Id. at 121. She testified that it occurred in early June 2008 and that she "immediately corrected it." Id. On redirect examination, J.W. explained, "I didn't want someone to think that I had made a false report. I wanted to make it right." Id. at 151.

         Defense counsel also asked J.W. about the Castle Rock house. J.W. testified that the Castle Rock house belonged to Lee's ex-girlfriend. J.W. said she could not remember what the inside of the house looked like. J.W. could not remember any animals depicted in the decor, but she remembered two cats lived in the house. She could not remember what color the cats were, but she remembered they were "slightly large." Id. at 112. J.W. also could not recall details of the interior of Lee's mother's house, despite testifying that she had been there. She also could not remember what Lee's mother looked like.

         Lee's ex-girlfriend Beth Bongiovanne also testified. In 2008, Bongiovanne lived in the Castle Rock house and had two cats. Bongiovanne testified that she allowed Lee to enter her house and use her black 1985 Camaro. Bongiovanne testified Lee used her Camaro "[q]uite a bit" in 2008, but not daily. Id. at 167, 181.

         Lee also testified. Lee testified he did not know J.W. Lee said the only interaction he had with J.W. occurred in 2008 when J.W. approached him outside of his mother's house and asked if he was married to Tina Dunlap. Lee denied calling J. W., picking her up outside her high school, and driving her to Tarn O'Shanter Park and Riverside Park. Lee admitted he wrote the letter but claimed he wrote it to "[n]o one." IB RP (Dec. 19, 2013) at 269. He said he wrote the letter for "[n]o particular reason" and that it was a "fantasy." Id. Lee testified he placed the letter with other possessions stored at his ex-wife's house. Lee denied driving Bongiovanne's black Camaro in 2008. Lee testified he never had any tattoos, and he removed his shirt to demonstrate he had none.

         The jury convicted Lee on two counts of third degree rape of a child, but it did not find the aggravating factor-that the crimes were part of an ongoing pattern of sexual abuse of the same victim. The jury found Lee not guilty of the remaining three counts. The court sentenced Lee to 34 months of confinement and 26 months of community custody for count one, and 26 months of confinement and 34 months of community custody for count two. The court imposed $2, 641.69 in LFOs, including $2, 041.69 in discretionary costs. Lee did not object.

         The Court of Appeals affirmed Lee's conviction. State v. Lee, No. 33229-2-III, slip op.at 1-2 (Wash.Ct.App. Aug. 13, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/332292.unp.pdf. The Court of Appeals concluded that the rape shield statute does not preclude evidence of a prior false rape accusation and held that the trial court abused its discretion when it limited Lee's cross-examination of J.W.[3] But the court concluded this error did not violate the confrontation clause. Finding no constitutional error, the court applied nonconstitutional harmless error analysis and concluded the error did not materially affect the outcome of the trial. The court also held the nearly four year delay between Lee's first arrest and the beginning of trial did not violate his constitutional right to a speedy trial. U.S. CONST, amend. VI. Lee raised the issue for the first time on appeal, and the court concluded the error was not "manifest" for purposes of RAP 2.5(a)(3). Lee, No. 33229-2-III, slip op. at 6. The court also declined to review the trial court's imposition of LFOs because Lee failed to object during sentencing. See State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 (2015).

         Lee petitioned this court for review on three issues. First, he argues the Court of Appeals erred when it applied nonconstitutional harmless error analysis because the trial court's ruling violated the confrontation clause. Second, Lee claims the delay between his initial arrest and the trial violated his right to a speedy trial. Finally, he asks for remand so the trial court can consider his ability to pay LFOs.

         We granted Lee's petition for review. State v. Lee, 185 Wn.2d 1009, 368 P.3d 171 (2016).

         II. ISSUES

         A. Did the trial court violate Lee's confrontation clause rights when it prevented him from asking J.W. about her prior false rape accusation? Which harmless error standard, if any, should have been applied?

         B. Is the nearly four year delay between Lee's initial arrest and the trial a manifest constitutional error warranting review for the first time on appeal under RAP 2.5(a)(3)?

         C. Should we remand for consideration of Lee's ability to pay LFOs consistent with Blazina?

         III. ANALYSIS

         A. The trial court did not violate the confrontation clause when it prevented Lee from specifying that J.W. had falsely accused another person of rape

         As an initial matter, we need not consider whether the trial court had tenable evidentiary grounds to prevent Lee from asking J.W. about the prior false rape accusation. The Court of Appeals held that the trial court erred when it concluded that the rape shield statute prevented Lee from specifying the nature of J.W.'s prior false accusation. Lee did not seek review of this issue, and the State failed to raise it in its response to Lee's petition for review. Thus, the issue is not before us, and we express no opinion on the Court of Appeals conclusion that the trial court committed evidentiary error.

         Because the Court of Appeals found only evidentiary error-rather than constitutional error-it applied nonconstitutional harmless error analysis and upheld Lee's conviction. Lee contends that the Court of Appeals should have applied constitutional harmless error analysis because the trial court's ruling infringed his right to confront J.W. But determining the appropriate harmless error standard requires considering whether the trial court violated Lee's right to confrontation. Therefore, the only question before us is whether the confrontation clause required permitting Lee to specify that J.W.'s prior false allegation involved rape.[4]

         1. Standard of review

         We review a limitation of the scope of cross-examination for an abuse of discretion. State v. Garcia, 179 Wn.2d 828, 844, 318 P.3d 266 (2014); State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). A trial court abuses its discretion when its decision is '"manifestly unreasonable or based upon untenable grounds or reasons.'" Garcia, 179 Wn.2d at 844 (internal quotation marks omitted) (quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012)).

         2. The trial court did not abuse its discretion when it prevented Lee from specifying the nature of J.W.'s prior false accusation

         The trial court permitted Lee to ask J.W. whether she had made a false accusation to police about another person. However, the court prevented Lee from specifying that J.W.'s prior false accusation was a rape accusation. He argues this limitation violated his confrontation clause rights and that the error was not harmless beyond a reasonable doubt. But because the excluded information had minimal probative value in light of legitimate state interests, the trial court's ruling did not violate the confrontation clause.

         Both the federal and state constitutions protect a defendant's right to confront an adverse witness. U.S. Const, amend. VI; Wash. Const, art. I, § 22; Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).[5] "Confrontation" includes more than mere physical confrontation. Davis, 415 U.S. at 315. '"The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Id. at 315-16 (internal quotation marks omitted) (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)). Cross-examination allows the defendant to "test the perception, memory, and credibility of witnesses." Darden, 145 Wn.2d at 620. Confrontation therefore assures the accuracy of the fact-finding process. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). "Whenever the right to confront is denied, the ultimate integrity of this fact-finding process is called into question. As such, the right to confront must be zealously guarded." Darden, 145 Wn.2d at 620 (citation omitted).

         But the right to confront a witness through cross-examination is not absolute. Chambers, 410 U.S. at 295. "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Courts may deny cross-examination if the evidence sought is "vague, argumentative, or speculative." Darden, 145 Wn.2d at 621.

         We apply a three-part test to determine whether a trial court violated a defendant's right to confront a witness by ...


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