State Of Washington v. James Edwin Mullins ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 79677-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JAMES EDWIN MULLINS,
Appellant.
SMITH, J. — James Mullins appeals his conviction upon retrial for
tampering with a witness. He asserts that the evidence was insufficient for a jury
to find him guilty. He further asserts that the trial court erred by denying his right
to present a defense, denying his right to a unanimous jury, violating his right to
bail, and denying him the opportunity to seek appellate discretionary review. And
in a statement of additional grounds, Mullins asserts the existence of spousal
privilege as a defense to the crime. Finding no error, we affirm.
FACTS
On May 9, 2014, James Mullins shot and killed Lazaro Lopez. The only
eyewitness to the shooting was Lopez’s sister Norma Silver, who had been in a
relationship with Mullins for over 25 years. The relationship was an abusive one.
At the time of the shooting, Mullins and Silver were staying with Mullins’
mother in Federal Way. Silver stayed up all night cleaning because Mullins’
brother was expected to visit that day. In the morning, Mullins scolded Silver
because he felt she had not done much. Shortly thereafter, Lopez arrived and
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79677-1-I/2
asked to see Silver. This angered Mullins. Mullins berated Lopez for showing up
early in the morning. Mullins, who was angry at Lopez for previously stating that
the death of Silver’s teenage son was God’s will, prodded Lopez about Lopez’s
son’s cancer by asking if it was God’s will. Silver told Mullins that she was done
with their relationship and that she was leaving with Lopez. Lopez put his hand
on Mullins’ shoulder, told Mullins to restrain himself, and smacked him on the
cheek to get him to “snap . . . out of [it].” Mullins pulled Lopez to the ground, and
they wrestled. When Lopez got up and stepped back, Mullins pulled out a gun
and shot him. Mullins turned to Silver and said, “[Y]ou saw that it was self-
defense.” Silver responded that it was not self-defense, and Mullins said, “[W]ell,
then I’m done for.”
The State charged Mullins in an amended information with murder in the
second degree. Mullins, in violation of a no-contact order, subsequently sent four
letters to Silver which formed the basis for an additional charge of witness
tampering. Prior to trial, Mullins moved to assert a claim of spousal testimonial
privilege to preclude Silver from testifying against him and to dismiss the witness
tampering charge. The court denied Mullins’ motion. At the close of the State’s
evidence, Mullins moved to dismiss the witness tampering charge based on
insufficient evidence or, in the alternative, to introduce evidence regarding the
existence of spousal privilege. The court denied Mullins’ motion to dismiss and
denied any evidence of spousal privilege beyond one question regarding what
Mullins considered his relationship with Silver to be.
2
No. 79677-1-I/3
At trial, Silver testified that Mullins did not act in self-defense. Mullins
testified in his own defense. He admitted shooting Lopez but claimed that Lopez
was trying to kill him and that he aimed at Lopez’s leg in self-defense. Mullins
further testified that the letters were intended to provide Silver with emotional
support, not to prevent her from testifying.
A jury convicted Mullins as charged. This court reversed his convictions
on appeal and remanded for a new trial. On December 18, 2018, a second jury
acquitted Mullins of murder in the second degree but found him guilty of witness
tampering.1 The court granted Mullins’ request for immediate release because
he had served all the time a standard range witness tampering charge would
entail. Mullins appeals.
ANALYSIS
Sufficiency of the Evidence
Mullins argues that the evidence was insufficient to support his conviction
for tampering with a witness. We review a claim of insufficient evidence for
“whether any rational fact finder could have found the essential elements of the
crime beyond a reasonable doubt.” State v. Wentz, 149 Wash. 2d 342, 347, 68
P.3d 282 (2003). An appellant challenging the sufficiency of the evidence admits
the truth of the State’s evidence. State v. Witherspoon, 180 Wash. 2d 875, 883, 329
P.3d 888 (2014). “[A]ll reasonable inferences from the evidence must be drawn
in favor of the State and interpreted most strongly against the defendant.” State
v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence
1 By special verdict, the jury rejected Mullins’ self-defense claim.
3
No. 79677-1-I/4
is no less reliable than direct evidence. State v. Delmarter, 94 Wash. 2d 634, 638,
618 P.2d 99 (1980). We defer to the trier of fact on issues of witness credibility.
Witherspoon, 180 Wash. 2d at 883.
Witness tampering is a crime that may be committed by three alternative
means: attempting to induce a person to (1) testify falsely or withhold testimony
without privilege to do so, (2) absent himself or herself from an official
proceeding, or (3) withhold information from a law enforcement agency.
RCW 9A.72.120(1)(a)-(c); State v. Lobe, 140 Wash. App. 897, 902-03, 167 P.3d
627 (2007). Here, the jury was instructed that to convict Mullins of witness
tampering, it needed to find beyond a reasonable doubt that he “attempted to
induce a person to testify falsely or, without right or privilege to do so, withhold
any testimony, or absent himself or herself from any official proceeding.”
Mullins contends that the State failed to present evidence on the
alternative means that he attempted to induce Silver to “testify falsely or, without
right or privilege to do so, withhold any testimony.”2 To the contrary, he asserts
that the letters he sent to Silver show that he repeatedly asked Silver to tell the
truth and expressed concerns that testifying falsely could constitute perjury. We
disagree. Although Mullins never expressly instructed Silver to lie, the letters
demonstrate that Mullins attempted to persuade her to go along with his version
of the facts by referencing their religious beliefs and proclaiming his love for her
while repeatedly asserting that he acted in self-defense, claiming that she did not
2Mullins concedes that a rational juror could have concluded that he
attempted to induce Silver to absent herself from court proceedings, contrary to
RCW 9A.72.120(1)(b).
4
No. 79677-1-I/5
witness the incident, and declaring that she was his common law wife. In
addition, Mullins insinuated that Silver would benefit by testifying in his favor or
suffer consequences if she did not. For example, in one letter, Mullins included
an advertisement for a $22,000 Silverado pickup truck along with the statement:
“Would Norma like a New Pick-up? She only has to tell the truth and write to
me!” In another letter, Mullins asserted that Silver would be guilty of several
felonies if she was not his wife and stated, “I pray my wife will not testify and
endanger herself by tricks which would catch her being inaccurate and getting a
perjury charge.” Viewing this evidence in the light most favorable to the State, a
rational trier of fact could find that Mullins was attempting to persuade Silver to lie
for him.
Mullins further argues that due process required the State to introduce
evidence at trial to affirmatively prove that he was “without right or privilege” to
withhold Silver’s testimony. Mullins is incorrect. The spousal testimonial
privilege prevents one spouse from being examined as a witness for or against
the other spouse without consent. RCW 5.60.060(1). Under ER 104(a),
“preliminary questions concerning . . . the existence of a privilege . . . shall be
determined by the court.” Here, prior to trial, Mullins asserted the privilege and
claimed that Silver could not testify against him because she was his common
law wife. After stating that the existence of the privilege was a legal issue, the
court ruled that it did not exist in Mullins’ case. As a result, Silver testified at trial
against Mullins. Given the fact that Silver testified at trial, in addition to language
in the letters indicating that Mullins sought to persuade Silver of the existence of
5
No. 79677-1-I/6
a common law marriage, a rational jury could find that Mullins had no right or
privilege to prevent Silver from testifying.
Right To Present a Defense
Mullins argues that the trial court violated his constitutional right to present
a defense when it denied his request to introduce evidence and argument at trial
that he believed Silver was his common law wife. This court reviews an alleged
denial of the constitutional right to present a defense de novo. State v. Jones,
168 Wash. 2d 713, 719, 230 P.3d 576 (2010).
The Sixth Amendment to the United States Constitution and article I, § 22
of the Washington Constitution guarantee the right to present a defense. State v.
Burnam, 4 Wash. App. 2d 368, 375-76, 421 P.3d 977, review denied, 192 Wash. 2d
1003 (2018). “‘The right of an accused in a criminal trial to due process is, in
essence, the right to a fair opportunity to defend against the State’s
accusations.’” Jones, 168 Wash. 2d at 720 (quoting Chambers v. Mississippi, 410
U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). However, the right is
not absolute. “‘The accused does not have an unfettered right to offer [evidence]
that is incompetent, privileged, or otherwise inadmissible under standard rules of
evidence.’” State v. Lizarraga, 191 Wash. App. 530, 553, 364 P.3d 810 (2015)
(alteration in original) (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct.
646, 98 L. Ed. 2d 798 (1988)). “[A] defendant’s interest in presenting relevant
evidence may ‘bow to accommodate other legitimate interests in the criminal trial
process.’” Lizarraga, 191 Wash. App. at 553 (internal quotation marks omitted)
6
No. 79677-1-I/7
(quoting United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L.
Ed. 2d 413 (1998)).
Here, prior to trial, the court denied Mullins’ motion to assert spousal
privilege. Mullins’ claim was based primarily on the alleged existence of a
common law marriage in Idaho between Mullins and Silver. The court denied
Mullins’ motion, finding no credible evidence of a common law marriage or
domestic partnership. Mullins has not challenged this ruling. Because the court
had already ruled that no spousal privilege existed, evidence seeking to prove
the alleged existence of the privilege was not relevant. “Defendants have a right
to present only relevant evidence, with no constitutional right to present irrelevant
evidence.” Jones, 168 Wash. 2d at 720 (emphasis omitted). The exclusion of such
evidence did not violate Mullins’ right to present a defense.
Unanimous Jury
Mullins asserts that the trial court violated his constitutional right to be
convicted by a unanimous jury because each of the four letters that formed the
basis for his witness tampering conviction was a distinct criminal act and the
State did not elect which one it was relying on to support the witness tampering
charge. The State responds that a unanimity instruction was not required
because the letters constituted a continual course of conduct. The State is
correct.
We review the adequacy of jury instructions de novo. State v. Pirtle, 127
Wash. 2d 628, 656, 904 P.2d 245 (1995). Jury instructions are sufficient if they are
supported by substantial evidence, allow the parties to argue their theories of the
7
No. 79677-1-I/8
case, and properly inform the jury of applicable law when read as a whole. State
v. Boyd, 137 Wash. App. 910, 922, 155 P.3d 188 (2007).
In an alternative means case, where a single offense may be committed in
more than one way, the jury must be unanimous as to the act constituting the
crime charged. State v. Petrich, 101 Wash. 2d 566, 683 P.2d 173 (1984), overruled
on other grounds by State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105
(1988)). “When the prosecution presents evidence of multiple acts of like
misconduct, any one of which could form the basis of a count charged, either the
State must elect which of such acts is relied upon for a conviction or the court
must instruct the jury to agree on a specific criminal act.” State v. Coleman, 159
Wash. 2d 509, 511, 150 P.3d 1126 (2007). However, no unanimity instruction is
required when the evidence demonstrates a “continuing course of conduct”
rather than several distinct acts. State v. Handran, 113 Wash. 2d 11, 17, 775 P.2d
453 (1989). “We use common sense to determine whether criminal conduct
constitutes one continuing course of conduct or several distinct acts.” State v.
Lee, 12 Wash. App. 2d 378, 393, 460 P.3d 701, review denied, 195 Wash. 2d 1032
(2020). “We evaluate whether the evidence shows conduct occurring at one
place or at many places, within a brief or long period of time, to one or multiple
different victims, and whether the conduct was intended to achieve a single or
multiple different objectives.” Lee, 12 Wash. App. 2d at 393 (footnote omitted).
Here, Mullins wrote each of the four letters to Silver from jail during a two-
month period pending trial. Each letter had the same objective, which was to
persuade Silver not to cooperate with the State in its prosecution of Mullins for
8
No. 79677-1-I/9
second degree murder. When viewed in a common sense matter, these multiple
acts formed a continual course of conduct. No unanimity instruction was
required.
Right to Bail
Mullins asserts that the trial court violated his constitutional right to bail
following reversal of his convictions on appeal and remand for retrial.3 He
concedes that the issue is moot because the trial court released him immediately
after the jury acquitted him of second degree murder. He nevertheless contends
that this court should review the issue because the circumstances present a
matter of continuing and substantial public interest. We disagree.
An issue is technically moot if the appellate court can no longer provide
effective relief. State v. Hunley, 175 Wash. 2d 901, 907, 287 P.3d 584 (2012). An
appellate court may nevertheless review a moot issue if it presents a matter of
“continuing and substantial public interest.” State v. Beaver, 184 Wash. 2d 321,
330, 358 P.3d 385 (2015). In making this determination, we consider three
factors: “‘[(1)] the public or private nature of the question presented, [(2)] the
desirability of an authoritative determination for the future guidance of public
officers, and [(3)] the likelihood of future recurrence of the question.’” Hunley,
175 Wash. 2d at 907 (alterations in original) (internal quotation marks omitted)
(quoting In re Pers. Restraint of Mattson, 166 Wash. 2d 730, 736, 214 P.3d 141
3 Article I, section 20 of the Washington State Constitution provides that
“[a]ll persons charged with crime shall be bailable by sufficient sureties, except
for capital offenses when the proof is evident, or the presumption great.”
9
No. 79677-1-I/10
(2009)). “This exception is not used in cases that are limited to their specific
facts.” Beaver, 184 Wash. 2d at 331.
A review of the record indicates that the circumstances Mullins now
challenges were fact-specific and unlikely to recur. Following Mullins’ preliminary
hearing and finding of probable cause in 2014, bail on the second degree murder
charge was set at $1,000,000 cash or surety bond. After this court reversed and
remanded his convictions for a new trial, a transport order directing that Mullins
be transported from the Department of Corrections (DOC) to the King County
Correctional Facility was entered on March 28, 2018. From April through
October 2018, Mullins appeared in court multiple times but did not request a bail
hearing. At an omnibus hearing on October 12, 2018, the prosecutor noted that
when Mullins was transported back from DOC on remand, he was “booked into
jail on a no bail warrant, DOC hold.” The prosecutor therefore asked the court to
reinstate bail at $1,000,000.4 Mullins objected to any bail being set. The court
signed an order reinstating bail and allowing Mullins to request a different amount
at a bond hearing.
A few days prior to trial, Mullins filed a motion to strike language in the
transport order indicating that he was to be returned to DOC after his case was
over. The prosecutor explained that Mullins was being held solely on the murder
charge, not on the DOC transport order. On this basis, the court denied Mullins’
motion because the problem had been resolved and it appeared the State had
4There is no DOC warrant in the record. The prosecutor likely was
referencing the transport order.
10
No. 79677-1-I/11
not acted in bad faith. After Mullins was acquitted on the murder charge and
found guilty of witness tampering, the court granted his motion for immediate
release because he had served time beyond that required for a standard range
sentence on the latter charge.
Although there appears to have been some confusion regarding the effect
of the transport order, there is no indication that the situation is likely to recur.
Moreover, the record does not support Mullins’ assertion that the court denied
him any opportunity for bail from April through October 2018. Mullins never
moved for reconsideration of bail after his preliminary appearance as provided by
CrR 3.2(j)(1). And nothing in the transport order restricted Mullins from
requesting or posting bail. Judicial review of this moot issue is unwarranted.
Discretionary Review
Mullins argues that the trial court erred by denying him the opportunity to
seek discretionary review of its pretrial ruling concluding that he failed to
establish that Silver was his common law wife. After the trial court issued its
ruling, Mullins stated, “I’d like to appeal this thing.” Defense counsel informed the
court that he was not retained to represent Mullins in an interlocutory appeal and
questioned whether the issue met the requirements for discretionary review. He
nevertheless requested a stay of the proceedings to allow Mullins to pursue an
interlocutory appeal under RAP 2.3.5 The court ruled that “the standard is [not]
5 Under RAP 2.3(a)-(c), the appellate court may grant discretionary review
if the superior court has committed an “obvious error,” a “probable error [which]
. . . substantially alters the status quo,” or “has so far departed from the accepted
and usual course of judicial proceedings . . . as to call for review by the appellate
court.”
11
No. 79677-1-I/12
met under RAP 2.3 in terms of staying these proceedings and allowing an
interlocutory appeal.” The court noted that Mullins retained the right to challenge
the pretrial ruling on appeal.
Mullins does not disagree that the court had discretion to refuse his
request for a stay pending discretionary review. Rather, he asserts that the trial
court lacked authority to unilaterally deny him the opportunity to seek
discretionary review. Mullins concedes that the issue is moot given that he did
not challenge the trial court’s denial of his spousal privilege motion on appeal, but
asks this court to review the issue as a matter of continuing and substantial
public importance. The record does not support Mullins’ claim. The trial court
did not bar Mullins from seeking discretionary review or purport to divert this
court of the power to decide whether discretionary review was warranted.
Rather, the court indicated that a stay was not warranted because it did not see
any legitimate basis for discretionary review under RAP 2.3(b).
Statement of Additional Grounds
Mullins first asserts that credible evidence supported the existence of an
Idaho-based common law marriage with Silver. He cites State v. Denton, 97 Wn.
App. 267, 270-71, 983 P.2d 693 (1999), in support of the proposition that failure
to procure a marriage license does not invalidate a ceremonial marriage. But the
trial court found Mullins’ testimony regarding the existence of a common law
marriage not credible. It further found credible Silver’s testimony indicating that
she never agreed to be married to Mullins. Such determinations are for the trier
12
No. 79677-1-I/13
of fact and are not subject to review. State v. Thomas, 150 Wash. 2d 821, 874, 83
P.3d 970 (2004). Mullins further asserts the existence of a legally valid Native
American marriage. Mullins provides no evidence or authority in support of this
assertion.
Mullins next claims that the trial court was judicially estopped from
concluding that no common law marriage existed because a Washington court in
2001 agreed that he and Silver were married. But the trial court judge
considered this evidence and gave it little or no weight because there was no
evidence that a judge “made a considered decision on that issue that would be
binding on this court.” Mullins provides no evidence indicating that this ruling
was in error.
Mullins further argues that he was illegally held for seven months without
opportunity for a bail hearing, thereby preventing him from obtaining more
evidence that would have proved the existence of a common law marriage. He
asserts that the prosecutor deliberately entered false information into the King
County Correctional Facility computer about the reason he was being held in
King County Correctional Facility in order to prevent him from obtaining a bail
hearing. The record does not support this assertion.
Affirmed.
WE CONCUR:
13