State of Washington v. Don Douglas Lovell ( 2013 )

July 11,2013
I n the Office ofthe Clerk oFCourt
WA State Court of Appeals, Division 11
11
I THE COURT OF APPEALS OF THE STATE OF WASHINGTON
N
DIVISION THREE
STATE OF WASHINGTON, 1
1 No. 30034-0-111
Respondent, 1
1
v. 1
1
DON DOUGLAS LOVELL, 1 UNPUHLISHED OPINION
1
Appellant. 1
SIDDOWAY, -Don
J. Lovell, having been charged with five crimes including the
second degree rape of his girl friend, was convicted and sentenced for only the crime of
second degree assault. He appeals that conviction, claiming the court violated his
constitutional rights when it sustained an objection to expert testimony that the girl friend
was an alcoholic and vulnerable to blackouts. The evidence was irrelevant and was
properly excluded. For that reason and because Mr. Lovell raises no viable challenge in
his statement of additional grounds, we affinn.
FACTS AND PROCEDURAL BACKGROUND
At around 4 a.m. one morning in August 2009, Walla Walla police officers
responded to a 91 1 call reporting a domestic violence incident at an address on East
Chestnut Road. When they arrived, the victim, P.M., hesitantly approached them from
No. 30034-0-111
State v. Lovell
the backyard of an adjacent home, uncertain they were the police. One of the responding
officers, Brett Barberich, would later describe her as acting "very frightened" and
i~nmediatelynoticed bruising around her left eye and the collarbone area. Report of
Proceedings (RP) at 306. Ms. M. told the officers that her boyfriend, Don Lovell, had
beaten her earlier in the evening and that she waited until he fell asleep to leave her home
and make a 91 1 call from the neighbors' home. The officers determined that a valid
restraining order was in place restraining Mr. Lovell from contact with Ms. M.
The officers could see that Ms. M. was very intoxicated and upon locating Mr.
Lovell in the bedroom of her home, found that he was very intoxicated as well. Whcn
asked about what had happened, Mr. Lovell claimed that Ms. M. "went crazy and
assaulted him," hitting him in the face and biting him, in response to which he defended
himself. RP at 323. He pointed out marks on his torso that appeared to the officers to be
consistent with bite marks. Officer Steven Slawson photographed them. The officers
nonetheless concluded from Ms. M.'s Inore extensive injuries that Mr. Lovell was the
primary aggressor.
Having made that determination, Officer Barberich transported Mr. Lovell to the
county jail. Mr. 1,ovell was cooperative. Officer Slawson stayed behind and took
photographs ofMs. M.
After the officers completed their investigative work, Ms. M. was taken to the
hospital by paramedics. Emergency room records reflect that Ms. M.'s chief complaint
No. 30034-0-111
State v. Lovell
on arrival was facial bruises and lacerations to her left posterior thigh.' The hospital
diagnosed Ms. M. with a severe concussion.
In the morning, Ms. M. was interviewed twice by Detective Tracy Klem. Ms. M.
told the detective that she had picked up Mr. Lovell the prior evening and driven him to
her home [or a dinner she had prepared. She told the detective she had been trying to get
the restraining order dropped because she and Mr. Lovell wanted to get back together. It
was after dinner that their reunion went badly awry and Mr. Lovell beat her up, including
by strangling her.
The State originally charged Mr. Lovell with violating a domestic violence (DV)
protection order, a class C felony. Approximately 10 days following the incident it
amended the information to charge him with two additional crimes against Ms. M.:
assault in the second degree-DV, for what it alleged was his strangulation of her, and
harassment-DV, for allegedly threatening to lcill her. It also charged Mr. Lovell at that
time with a felony harassment of Jason Spencer, an off-and-on friend of Mr. Lovell's,
based on Ms. M.'s report that Mr. Lovell threatened to kill Mr. Spencer in the course of
his August 24 assault of her.
1
Ms. M. later testified that the cut on her thigh was an accident caused when Mr.
Lovell threw a glass at a coffee table early in the evening. A piece of the glass had struck
her. He apologized and had assisted hcr in bandaging it.
No. 30034-0-111
State v. Lovell
On September 3, Ms. M. had a doctor's appointment with her primary physician,
Dr. Lauri Larson. Ms. M. had seen Dr. Idarsonearlier in the summer complaining of
anxiety and the doctor had been treating Ms. M. with antidepressants. Ms. M. made the
appointment for the 3rd to discuss the assault. RP at 391. Shc told Dr. Larson about her
injuries. The doctor asked if sex had occurred that night; Ms. M. said yes, sex had
occurred. RP at 286. She told the doctor that it was vaginal intercourse and it hurt
terribly. RP at 393. Dr. Lars011then conducted a pelvic examination and observed
lacerations that the doctor attributed to forcible intercourse. RP at 399-400.
Five days later, on September 8, Ms. M. called Detective Iclem and told hirn for
the first tilnc that she had been raped by Mr. 1,ovell during the course of the assault. The
detective asked her to come in to the police department and speak with him, which she
did on September 10. In Ms. M.'s later interviews by Detective Klc~n, told him Mr.
she
Lovell's assault had begun when she rebuffed his efforts to initiate sexual intercourse.
She said Mr. Lovell responded by overpowering her efforts to resist and raping her.
Based on this additional information, the State amended its information a third time, in
January 201 1, charging Mr. Lovell with four crimes against Ms. M.: (1) assault in
violation of a protection order, (2) assault in the second degree for strangulation, (3)
felony harassment domestic violence, and (4) rape in the second degree. It carried
forward the charge of the felony harassment of Jason Spencer.
No. 30034-0-117
State v. Lovell
The jury trial took place in April 201 1. Evidence presented during the four-day
trial illcluded considerable evidence of Mr. Lovell's and Ms. M.'s heavy drinking
throughout their teinpestuous relationship, including their drinking on the night of the
assault. In addition to testitjling that Mr. Lovell overpowered and raped her, Ms. M.
testified that he demandcd that she admit to having an affair with his friend, Mr. Spencer,
which she refused to do. She testified that Mr. Lovell then threatened to lcill her, lcill Mr.
Spencer, and l388 U.S. 14, 17-19, 87 S. Ct. 1920, 18 L. Ed.
2d 1019 (1967). The right to compulsory process "is in plain terms the right to present a
defense [and] a right to present the defendant's version of the facts." Id. at 19; State v.
Tlzomas. 150 Wn.2d 821, 857, 83 P.3d 970 (2004). The right to present a defense has its
limits, however, and "a criminal defendant has no constitutional right to have irrelevant
evidence admitted in his or her defense." Stale v Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514(1983).
Only relevant evidence is admissible. ER 402. '"Relevant evidence' means
evidence having any tendency to make the existence of any fact that is of consequence to
NO. 30034-0-111
State v.Lovell
the determination of the action more probable or less probable than it would be without
the evidence." ER 401. Even if relevant, evidence inay be excluded if the court finds it
to be unfairly prejudicial, that it confuses the issues, or that it inisleads the jury. ER 403.
Mr. Lovell maintains that we must review the trial court's decision to exclude Dr.
Flecl<'s testimony de novo, the standard of review that applies to admissibility decisions
under Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). He argues that the
court should have analyzed the evidence under ER 702 through 705 before sustaining the
State's objection. But the trial court never reached the question of whether Dr. Fleck's
opinions satisfied the requirements of those rules; it excluded the evidence as irrelevant
under ER 401, or only marginally relevant and unduly prejudicial under ER 403. Expert
opinion testimony must satisfy ER 401 and 403 in addition to the rules included in Title
VII of the evidence rules. Anderson v. Akzo Nobel Coalings, Inc., 172 Wn.2d 593,606-
07, 260 P.3d 857 (201 1).
We review a trial court's ruling on the admissibility of evidence for abuse of
discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). A trial court's
evaluation of relevance under ER 40 1 and its balancing of probative value against its
prejudicial effect under ER 403 is accorded a great deal of deference, using a "manifest
abuse of discretion" standard of review. Id. (quoting State v. Luvene, 127 Wn.2d 690,
706-07,903 P.2d 960 (1995)).
No. 30034-0-111
State v. Lovell
Therc was no evidence that Ms. M.'s delay in reporting the full extent of Mr.
Lovell's claimed wrongdoing on the night of the assault was because she suffered from
lapses of inernory. She testified at trial to many things she recalled from the events of
August 23 and 24. She was cross-examined extensively, including about her delayed
reporting, which she largely attributed to not initially understanding that she could be
"raped" by a boyfriend with whom she had previously had consensual intercourse. She
never claimed to have forgotten events. For his part, of course, Mr. Lovell claimed that
the criminal conduct never happened.
A careful review of the offer of proof reveals nothing that would have discredited
Ms. M.'s testimony as to what she claimed to recall. The offer ooTproof was that
alcoholics suffering from blacl466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007); State v.
Reiclzenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Deficient performance is that
which falls "below an objective standird of reasonableness based on consideration of all
the circumstances." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Prejudice exists if the defendant can show that "there is a reasonable probability that, but
for counsel's unprofessio~lal
errors, the outcorne of the proceeding would have been
different.'' Nichols, 161 Wn.2d at 8. If a party fails to satisfy one element, a reviewing
court need not consider both Strickland prongs. State v. Foster, 140 Wn. App. 266,273,
166 P.3d 726 (2007).
In evaluating claims for ineffectiveness, we are highly deferential to counsel's
decisions and there is a strong presu~nption
that counsel performed adequately.
Strickland, 466 U.S. at 689-91. Strategic and tactical decisions are not grounds for error.
Id.; Reichenbach, 153 Wn.2d at 130.
A person is guilty of assault in the second degree if he or she assaults another by
strangulation. RCW 9A.36.021(l)(g). "Strangulation" is defined by statute to mean "to
compress a person's neck, thereby obstructing the person's blood flow or ability to
breathe, or doing so with the intent to obstruct the person's blood flow or ability to
11
No. 30034-0-111
State v. Lovell
breathe." RCW 9A.04.110(26). The Washington pattern instructions for criminal trials
include a pattern instruction tracking this statutory definition of strangulation. 1I
WASHINGTON
PRACTICE:
WASHINGTON
PATTERN
JURYINSTRIJCTIONS:
CRIMINAL
35.53
(Supp. 201 1). The trial court gave the pattern instruction. Clerk's Papers at 1 13
(Instruction 12).
Mr. Lovell argues, however, that the legislativefindings included in Laws of 2007,
chapter 79, section 1, which enacted the crime of second degree assault by strangulation,
should have been proposed by his lawyer as the proper source of a definition for the jury.
The legislative findings refer to the fact that assault by strangulation "may result in
immobilization of a victim, may cause a loss of consciousness, injury, or even death,"
and that strangulation is often knowingly inflicted "with the intent to coinmil physical
injury, or substantial or great bodily harm." Id.Legislative findings are not law on the meaning of strangulation. The statutory
definition is. It was the definition given to the jury. There was no error.
Mr. L,ovell also argues that the jury should have been instructed on the lesser
degree crime of fourth degree assault. A person is guilty of assault in the fourth degree
if, under circuinstances not amounting to assault in the first, second, or third degree, or
custodial assault, he or she assaults another. Fourth degree assault is a gross
misdemeanor. RCW 9A.36.041.
No. 30034-0-111
State v. Love11
Mr. Lovell's theory of the case was that he acted in self-defense. He relied on his
own testimony and pointed to photographs taken on the morning of his arrest that
depicted the fact that he, too, had been injured. An "all or nothing" strategy is a
legitimate trial tactic to achieve an outright acquittal. State v Gvier, 171 Wn.2d 17, 43,
246 P.3d 1260 (201 1). The record reveals that Mr. Lovell's lawyer represented h i ~ n
zealously, effectively, and largely successfully. That an "all or nothing" defense,
reasonable under the circumstances, was not entirely successful does not demonstrate
deficient performance.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to KCW
2.06.040.
W E CONCUR:
-
c-)-
Korsmo, C.J.
Knlik, J.