State Of Washington v. Alphonso Brownlee ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
April 20, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53753-2-II
Respondent,
v.
ALPHONSO CURTIS BROWNLEE, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — A jury convicted Alphonso Brownlee of two counts of residential burglary,
two counts of assault in the second degree, two counts of violation of a no contact order, and two
counts of tampering with a witness. The victim of these crimes did not testify. The State’s
evidence at trial included sworn victim statements admitted under the forfeiture by wrongdoing
doctrine. Brownlee appeals his conviction, arguing that the trial court violated his constitutional
right to confrontation by admitting the victim’s out-of-court statements. We affirm.
FACTS
The State charged Brownlee with two counts of residential burglary, two counts of assault
in the second degree, two counts of violation of a no contact order, and two counts of tampering
with a witness. The jury concluded that each count was a crime of domestic violence. The charges
arose out of two incidents that occurred in May 2019, involving Jacqueline White, the mother of
his child. White wrote a sworn statement detailing the circumstances of Brownlee’s assault against
her. White had a prior no contact order against Brownlee due to a past assault against her.
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Before trial, the State had mailed subpoenas to White’s last known address, attempted
personal service, and issued a material witness warrant. In spite of these efforts, the State did not
reach her. White was unavailable for trial.
When White failed to appear to testify at trial, the State sought to admit White’s sworn
written statement as substantive evidence. The State argued that Brownlee had procured White’s
unavailability thereby forfeiting his confrontation right under the doctrine of forfeiture by
wrongdoing.
In making its decision, the trial court reviewed White’s statement and Brownlee’s phone
calls from jail. Specifically, the trial court considered the phone calls Brownlee made before the
May 2019 incident and arrest while he was in jail for a prior domestic violence charge also
involving White.
On January 30, 2019, Brownlee called a person by the name of Sierra and learned that
White was staying with Martisha Eckles, Brownlee’s cousin. Brownlee requested help from Sierra
but conveyed that there was “only so [] much” he could say over the phone. Clerk’s Papers (CP)
at 850. Brownlee said that there are things that can be done to get him out of jail, and that Sierra
should “fix” his situation by contacting Maurina Thomas, Brownlee’s mother, about White. CP
at 846-47. While asking Sierra for assistance, Brownlee repeatedly confirmed with, “You know
what I’m saying?” CP at 846.
On February 3, Brownlee called Thomas and told her he was not worried about White
testifying. He also told Thomas that they should not talk about the case over the phone anymore
and that he would write her a letter.
On February 19, Brownlee again called Thomas and told her that he had sent her letters.
He asked her to be his eyes and ears and to forward his comments “down the pipeline.” CP at 896.
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On March 8, Brownlee called Thomas. He mentioned that he did not want to speak on the
phone about his case. He also told Thomas that she should pay attention to the letters he sent to
her, that she knows what to do, and added, “‘Ya know what I’m sayin’?” CP at 942. He also said
that everyone should be “on the same page.” CP at 944.
On March 11, Brownlee spoke with Thomas. He stressed that everyone is “on point” and
continued, saying that Eckles “knows her stuff” and would not testify. CP at 957. Brownlee
referred to White and said she will not appear at trial, will not be found, and that “she’ll deal with
[Brownlee] later.” CP at 958. Brownlee ended the call by asking Thomas to ensure everyone is
on the same page.
On March 20, Brownlee called Thomas and said that “[t]hings need to be taken care of”
and “whoever’s important” should call the State. CP at 993. Brownlee asked Thomas to inform
Eckles that she should ignore a subpoena and refuse to cooperate in the case. He instructed Thomas
to have Eckles call the State to inform them that she will not testify.
In considering forfeiture by wrongdoing, the superior court also reviewed evidence other
than the phone calls stemming from the May 2019 incidents. During Brownlee’s arrest for the
May 2019 incidents, he made a spontaneous comment that White would recant. Brownlee also
attempted to send White a text message telling her to recant, but he accidentally sent the message
to a police officer instead.
The trial court issued findings of fact and conclusions of law determining that Brownlee
had forfeited his right to confrontation. The court admitted White’s sworn statement.
Brownlee disputes the following findings of fact:
VI.
That on January 30, 2019 at 18:24 the Defendant has another call with his
Cousin, Ms. Eckles. Several times he tells Ms. Eckles things could be done to get
him out of jail, followed by “you know what I’m saying.” He tells Ms. Eckles that
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she is going to get a message and that the message is going to do what it needs to
do. After that comment he talks about her knowing what the phone is like. Later
he talks about how his mother is going to come over and see “'you guys” (Ms. White
is still staying with Ms. Eckles), that his mom will explain some stuff because she
is not getting it. He again talks about not being able to say stuff over the phone and
that things can be done to get him out of jail. These comments are followed by
“you know what I'm saying”.
VII.
That on February 3, 2019 at 17:30 the Defendant talks to his mother
Maurina Thomas. During this call he tells his mom that he is not worried about
Ms. White testifying. Later, after talking to his mom about things that should be
done, he says “you know what I mean” and then tells her that from now on they
cannot talk about the court case over the phone and that anything he needs to say
he will write in a latter (sic).
VIII.
That on February 19, 2019 at 15:57, the defendant talks to Ms. Thomas. During
this call he talks about not wanting to talk on the phone because his calls are being
listened to. He tells Ms. Thomas to be his eyes and ears and tells her she needs to
be his mouthpiece. He tells Ms. Thomas that everyone needs to be on “on (sic)
accord” out there and tells her she needs to pass everything down the pipeline,
that everything he says needs go down the pipeline. He then says, “you know
what I’m saying.”
....
XI.
That on March 8, 2019 at 17:19 the Defendant talks to Ms. Thomas. During
this call he talks, again, about not liking to talk about it over the phone. He tells
her to pay attention to his letters and that she knows what to do. As with the other
calls he says you know what I'm saying and talks about being on the same page.
XII.
That on March 11, 2019 at 16:08, the Defendant talks to Ms. Thomas.
During this call the defendant talks about everyone being on point, about Ms.
Eckles knowing her stuff and that “she” is not going to work with the state. He also
talks about how both he and Ms. Thomas know that “she” is not going to come in
and how “she” will not be found. As Ms. Eckles whereabout [sic] were known and
finding her would not be an issue it is clear the Defendant is talking about Ms.
White. During this call he again talks about Ms. Thomas making sure that everyone
is on the same page and letting things be known.
....
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XXIII.
Jacqueline White is unavailable for trial. Her whereabouts are unknown.
She has been mailed and personal service of subpoenas has been attempted on
numerous occasions. Ms. Eckles currently appears to be available for trial.
XXIV.
The defendant was involved in and responsible for procuring the
unavailability of Ms. White. He has also attempted to procure the unavailability of
Ms. Eckles although she currently appears to be available.
XXV.
The defendant’s actions were intended to prevent Ms. White and Ms. Eckles
from testifying. The Defendant began these efforts while case 19-1-00018-18 was
pending. And he continued the efforts after he was released from that matter, while
he was out of custody all the way to the point of the first day of his trial in this case.
His efforts to procure the unavailability of the witnesses has been ongoing
throughout both case 19-1-00018-18 and this case.
CP at 1039-46.
Brownlee also challenges the following conclusions of law:
III.
That the defendant was involved in and responsible for procuring the
unavailability of Ms. White. He has also attempted to procure the unavailability of
Ms. Eckles although she currently appears to be available.
IV.
That [t]he defendant’s actions were intended to prevent Ms. White and Ms. Eckles
from testifying.
CP at 1047.
On the first day of Brownlee’s trial, the State requested a continuance because the assigned
prosecutor was busy with a prior trial. The court granted the continuance over Brownlee’s
objection, concluding that the assigned prosecutor’s unavailability due to their work on the prior
trial satisfied the requirements of CrR 3.3(f)(2).
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A jury convicted Brownlee of two counts of residential burglary, two counts of second
degree assault, two counts of violation of a no contact order, and two counts of tampering with a
witness. Brownlee appeals his convictions.
ANALYSIS
Brownlee argues that the trial court erred in admitting White’s written statement as
substantive evidence. Brownlee also challenges several findings of fact and conclusions of law
made by the trial court in its order admitting White’s statements under the forfeiture by
wrongdoing doctrine. Lastly, Brownlee argues that the trial court violated his right to
confrontation under the Sixth Amendment to the United States Constitution by admitting White’s
out-of-court statements. We affirm the trial court’s rulings.
I. STANDARD OF REVIEW
The State must prove forfeiture by wrongdoing by clear, cogent, and convincing evidence.
State v. Fallentine, 149 Wn. App. 614, 619-20, 215 P.3d 945 (2009). Under such standard, we
review a trial court’s ruling to determine whether it is supported by substantial evidence that is
highly probable. Id. at 620-21. “Substantial evidence exists where there is a sufficient quantity of
evidence in the record to persuade a fair-minded, rational person of the truth of the finding.” State
v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review Brownlee’s constitutional
confrontation claim de novo. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705 (2014).
II. FORFEITURE BY WRONGDOING
A. Legal Principles
The Sixth Amendment gives criminal defendants the right to confront the witnesses against
them. State v. Mason, 160 Wn.2d 910, 925, 162 P.3d 396 (2007). The forfeiture by wrongdoing
doctrine is an equitable exception to the Sixth Amendment’s right to confrontation. Id. at 924-25.
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Under the doctrine, defendants that procure the unavailability of a witness forfeit their right to
confront the missing witness. Id. at 924.
The forfeiture by wrongdoing doctrine requires that: “(1) the defendant engaged in
wrongdoing; (2) the wrongdoing was intended to render the absent witness unavailable at trial;
and (3) the wrongdoing did, in fact, render the witness unavailable at trial.” State v. Tyler, 138
Wn. App. 120, 128, 155 P.3d 1002 (2007).
“Unavailability means that the proponent is not presently able to obtain a confrontable
witness’ testimony.” State v. Ryan, 103 Wn.2d 165, 171, 691 P.2d 197 (1984). “A witness may
not be deemed unavailable unless the prosecution has made a good faith effort to obtain the
witness’ presence at trial.” Id. at 170.
A defendant commits wrongdoing if they directly procure a witness’s unavailability, or use
an intermediary to do so. State v. Hernandez, 192 Wn. App. 673, 682, 368 P.3d 500 (2016).
Further, a defendant who uses threats of violence against a witness commits wrongdoing. Dobbs,
180 Wn.2d at 12 (determining that stalking and attempting to harm a witness constitutes
wrongdoing).
However, wrongdoing extends beyond procuring a witness’s absence by threats of
violence. Hernandez, 192 Wn. App. at 682. In Hernandez, the court held that encouraging a
person to take a child witness out of the country by using coded language to communicate with
the child’s guardian was wrongdoing sufficient to implicate the forfeiture by wrongdoing doctrine.
Id.
Additionally, prior domestic violence can be relevant to the inquiry of whether a defendant
has wrongfully procured a witness’s unavailability. Giles v. California, 554 U.S. 353, 377, 128 S.
Ct. 2678, 171 L. Ed. 2d 488 (2008). In Giles, the United States Supreme Court concluded that acts
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of domestic violence are intended to isolate victims and prevent them from seeking outside help
and are therefore relevant to the inquiry. Id.B. Challenged Findings and Conclusions
Here, Brownlee challenges a number of findings of fact and conclusions of law. The burden
of demonstrating a finding is not supported by substantial evidence rests with the party challenging
it. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). When the defendant challenges the
sufficiency of the evidence in a criminal case, all reasonable inferences from the evidence must be
drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). Brownlee fails to show the trial court’s findings are
unsupported by substantial evidence that is clear, cogent, and convincing.
1. Findings of Fact VI, VII, VIII, XI, and XII.
Brownlee assigns error to findings of fact VI, VII, VIII, XI, and XII, but he provides no
argument. Therefore, his assignments of error are waived and we will not consider them. RAP
10.3(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
2. Finding of Fact XXIII.
Finding of fact XXIII is supported by substantial evidence. Finding of fact XXIII states
that White is unavailable for trial. Under Ryan, the State must make a good faith effort to procure
White’s attendance at trial. 103 Wn.2d at 170-71. Here, the State showed that it could not locate
White despite making good faith efforts in the form of mailing a subpoena, attempting personal
service, and issuing a material witness warrant. Thus, the trial court’s finding that White was
unavailable is supported by substantial evidence that is clear, cogent, and convincing because there
is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the
truth of the finding.
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3. Findings of Fact XXIV and XXIV.
We conclude that substantial evidence that is clear, cogent, and convincing supports the
trial court’s findings of fact XXIV and XXV. Additionally, we conclude that the facts show with
a high degree of probability that Brownlee attempted to procure White’s unavailability.
First, the record shows Brownlee made multiple attempts to procure White’s unavailability.
He expressly asked White to recant statements in a prior case. During multiple phone calls, he
used thinly veiled language asking people to “fix” his situation. CP 846-47. During these calls he
repeatedly said there were things that could be done to get him out of jail. And he stated upon his
arrest that White would recant and he attempted to send her a text message telling her to recant.
Second, the record shows that Brownlee’s communications were intended to procure
White’s unavailability. He appeared to believe that absent the forfeiture by wrongdoing doctrine,
White’s unavailability would result in his freedom.
Third, White was unavailable despite the State’s reasonable efforts to contact her. White
made a sworn statement showing a prior willingness to cooperate. After Brownlee’s comments
about White recanting, she stopped responding to the State’s attempts to reach her.
Based on the record, the trial court’s findings of fact XXIV and XXV are supported by a
sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth
of the findings.
C. Challenged Conclusions of Law
Brownlee challenges conclusions of law III and IV. We review conclusions of law to
determine whether they are supported by the findings of fact. State v. Pratt, 11 Wn. App. 2d 450,
457, 454 P.3d 875 (2019), aff’d, 196 Wn.2d 849 (2021). However, here, Brownlee challenges
conclusions of law III and IV by only arguing that the findings of fact are unsupported by
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substantial evidence. As discussed above, the challenged findings are supported by substantial
evidence that is clear, cogent, and convincing. Thus, Brownlee’s challenge fails.
III. STATEMENT OF ADDITIONAL GROUNDS (SAG)
Brownlee submitted a SAG asserting that the trial court violated his time for trial right
under CrR 3.3 when it continued the trial over his objections.
We review an alleged violation of the time to trial rule de novo. State v. Carlyle, 84 Wn.
App. 33, 35-36, 925 P.2d 635 (1996). “‘[T]he decision to grant or deny a motion for a continuance
rests within the sound discretion of the trial court,’” and we will not disturb the trial court’s
decision unless there is a clear showing it is “‘manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.’” State v. Flinn, 154 Wn.2d 193, 199, 110 P.3d 748 (2005)
(internal quotation marks omitted) (quoting State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169(2004)).
CrR 3.3(e)(8) states, “The following periods shall be excluded in computing the time for
trial: . . . Unavoidable or unforeseen circumstances affecting the time for trial beyond the control
of the court or of the parties.” “Unavailability of counsel where counsel is in trial on another
matter may constitute unforeseen or unavoidable circumstances justifying a trial extension under
CrR 3.3([e])(8).” State v. Jones, 117 Wn. App. 721, 730, 72 P.3d 1110 (2003).
Here, the record shows the assigned prosecutor was in another trial. Thus, the prosecutor’s
absence was unforeseen or unavoidable. We conclude that the continuance did not violate
Brownlee’s time for trial right under CrR 3.3 because the prosecutor assigned to Brownlee’s case
was occupied with another trial.
We affirm.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, J.
We concur:
Worswick, J.
Lee, C.J.
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