STATE v. ADAMS, 146 Wn. App. 1015 (2008)

No. 60607-7-I.The Court of Appeals of Washington, Division One.
July 28, 2008.

Appeal from a judgment of the Superior Court for King County, No. 05-1-13775-1, Julie Spector, J., entered September 19, 2006.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

Dominique Adams appeals her conviction of robbery in the first degree. Dominique contends that the trial court abused its discretion by admitting previously suppressed evidence of a telephone threat because there was no evidence that Dominique was the caller. In the alternative, Dominique argues that her attorney provided ineffective assistance of counsel by asking a question that allowed the admission of evidence of the telephone threat. Dominique also contends her attorney was ineffective in failing to object to an instruction that allowed the jury to consider Dominique’s prior juvenile assault conviction in assessing her credibility. Because the trial court did not abuse its discretion in admitting evidence of the telephone threat, and Dominique cannot show prejudice, we affirm.

FACTS
Dominique Adams and Candice Bryant attended Garfield High School and were friends in 2003, during their freshman year. Bryant also knew Dominique’s sister, Dequena Adams.[1]
Sophomore year, the friendship ended. In February 2004, Dominique and Dequena assaulted Bryant. Dominique pleaded guilty to and Dequena was convicted of the misdemeanor assault of Bryant. After Dominique’s conviction, Bryant obtained several restraining orders against Dominique. On July 14, 2004, Dominique told Bryant that “no restraining order was going to stop her from whipping [Bryant’s] ass again.”

On the night of September 27, 2005, Bryant was walking to her mother’s house after spending the evening with her cousin. The sidewalk was not well lighted, so she left the sidewalk and walked in the street where it was brighter. As Bryant was walking, she talked on her cell phone to her friend Michael Brown. Bryant testified that two women approached her from both sides of the street. Bryant said that she could see the two women’s faces, and recognized them as Dominique and Dequena Adams. Bryant ended the call with Brown.

Bryant testified that Dominique and Dequena shoved her, and she fell to the ground next to a parked car. Bryant said that as she lay on the street, Dominique and Dequena kicked and hit her. Bryant felt a sharp object hit the side of her head, and she forced herself to get up. Dominique and Dequena grabbed at Bryant’s purse, but Bryant resisted. Dominique let go of Bryant’s purse, but Dequena continued to pull on the strap, and Bryant eventually released the purse so she could get away. Bryant heard Dequena yell at Dominique to get Bryant’s cell phone so Bryant could not call the police. Dominique moved towards Bryant, but Bryant shoved her away.

Bryant testified that after the attack, she immediately called Michael Brown, who told her to call the police. Bryant called 911. When she walked around the corner, she encountered Officer Hammermaster. Bryant approached Officer Hammermaster, and told him what had happened. She told Officer Hammermaster that Dequena and Dominique Adams robbed her and beat her up. After giving her statement to Officer Hammermaster, Bryant was taken to the emergency room, where she was treated for her injuries, which included cuts and scrapes on her knees, bruises on her arm, and a bloodied lip.

The State charged Dominique and Dequena Adams with robbery in the first degree. Dequena’s case was resolved before the trial. The State’s theory at trial was that Dominique was guilty of robbery in the first degree individually and as an accomplice. Dominique asserted an alibi defense, claiming that she was at home on the night of the robbery.

Pretrial, the State filed a motion to admit Dominique’s misdemeanor assault conviction, one of the protection orders against Dominique, and Dominique’s threat to Bryant that a protection order would not prevent her from “whipping [Bryant’s] ass.” The State also sought to admit evidence of two threatening phone calls that were made to Bryant’s mother, Marguerite Abdullah, in December 2005. The court allowed the State to introduce evidence of Dominique’s misdemeanor assault conviction, and the “whipping ass” comment as proof of motive under ER 404(b), but excluded any reference to the restraining order. The court also excluded evidence of the protection order against Dominique and the telephonic threats as more prejudicial than probative.

Candice Bryant, Michael Brown, and Officer Bradley Hammermaster testified at trial on behalf of the State. Michael Brown testified that his first call to Bryant on the evening of September 27 ended abruptly after hearing Bryant scream. He said that the next time he talked with Bryant was after the robbery, and that Bryant was “upset,” “frustrated,” and “scared.” Bryant told Brown that she had been attacked, and that her purse had been stolen by Dominique and Dequena Adams.

Officer Hammermaster testified that on September 27 he was on duty, backing another officer, when he was approached by Bryant, who Hammermaster said was “excitable” and “angry.” Bryant told Officer Hammermaster the details of the robbery, including that she was attacked by Dominique and Dequena Adams.

Dominique Adams and her mother, Darlene Adams, testified. Dominique said that in 2005 she was living with her mother, she worked Monday through Friday from 8 a.m. to 5 p.m., and her mother imposed a 9 p.m. curfew. Dominique said that on September 27, she went to work and took the bus home, arriving in Renton around 6:30 p.m. Dominique and her mother ate dinner. Dominique talked on the phone, prepared her clothes for the next day, and then watched a movie on the Lifetime channel with Darlene. Dominique denied assaulting or robbing Bryant. She told the jury that she threatened to “whip Bryant’s ass” because she was angry at Bryant at the time, but that she had since gotten over her anger. Dominique unequivocally denied having had any contact with Bryant since February 2004.

Darlene Adams testified that Dominique lived with her in September 2005, and that Dominique had a 9 p.m. curfew. Darlene told the jury that Dominique was at home with her on September 27. Dominique and Darlene ate dinner together, and after dinner they watched a movie on the Lifetime channel. Darlene described the storyline of the movie that they watched that night. On cross examination, the State impeached Darlene by showing that the Lifetime channel did not list any programs on September 27 with a plot similar to the one that she described.

At the conclusion of the defense’s case, the State argued that Dominique’s testimony that she did not have any contact with Bryant since February 2004, “opened the door” to the previously suppressed evidence of the threatening phone calls to Bryant’s mother, Marguerite Abdullah. The defense argued that the evidence should be excluded because the witness could not identify Dominique as the caller. The defense also argued that admitting the evidence would violate the Privacy Act.[2] The court allowed the State to introduce evidence of the threat in rebuttal, but ruled that Marguerite Abdullah would be excluded as a witness.[3] The court allowed Ed Liebl, a Seattle School District employee who had also heard the call, to testify.

In rebuttal, Liebl testified that he was the chief investigator at the Seattle School District. Liebl said that in December 2005, he responded to a request to investigate a threatening phone call that Marguerite Abdullah had received at Rainier Beach High School. While Liebl was in Abdullah’s office, she received a second call, and Abdullah put the call on the speaker phone so Liebl could hear. Liebl testified that a female caller threatened “that she was going to beat up Marguerite’s daughter, [Candice Bryant]; she was going to get her, Marguerite; she was going to damage Marguerite’s vehicle.” On cross examination, Liebl admitted that he could not identify the voice of the caller.

In surrebuttal, Dominique denied that she called Abdullah and made the threats.

Even though the State had not introduced any evidence under ER 609, the court included jury instruction No. 5, which was proposed by both the State and the defense. Instruction No. 5 allowed the jury to consider Dominique’s prior conviction when weighing her credibility. The credibility instruction conflicted with jury instruction No. 13, which told the jury it could consider the evidence of Dominique’s prior misdemeanor assault conviction and her threat to Bryant for the limited purpose of determining motive.

After the four-day trial, the jury convicted Dominique of robbery in the first degree.[4] Dominique appeals.

ANALYSIS
Dominique Adams contends that the trial court abused its discretion by allowing the State to introduce evidence of the threatening telephone call made in December 2005 to Bryant’s mother, Marguerite Abdullah, because the call was hearsay, and because Dominique could not be identified as the caller.

We review a decision to admit or exclude evidence for abuse of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119
(2003), aff’d, 266 Fed. Appx. 647 2008 U.S. App LEXIS 3324. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The trial court has discretion to admit evidence that might otherwise be inadmissible if a party “opened the door” to the evidence by being the first to raise a subject during examination of a witness. Ang v. Martin, 118 Wn. App. 553, 562, 76 P.3d 787 (2003). “Fairness dictates that the rules of evidence will allow the opponent to question a witness about a subject matter that the proponent first introduced through the witness.” State v. Gallagher, 112 Wn. App. 601, 610, 51 P.3d 100
(2002).

Before trial, the court granted the defense’s motion to exclude evidence of the threatening telephone call to Marguerite Abdullah. But after Dominique testified that she had not had any contact with Bryant since Dominique’s conviction in February 2004, the court allowed the State to introduce evidence of the threat to Abdullah in December 2005. Dominique argues that Liebl’s testimony was irrelevant hearsay, but a threat is not hearsay if it is not offered to prove the truth of the matter asserted. State v. Roberts, 80 Wn. App. 342, 352, 908 P.2d 892
(1996).

Here, the evidence was not offered to prove that Dominique intended to carry out the threat; it was offered to rebut Dominique’s testimony after she opened the door to such evidence. Also, the fact that Liebl could not identify Dominique as the caller goes to the weight of the testimony, not its admissibility. State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929
(1984) (uncertainty on the part of a witness will affect only the weight of evidence, not its admissibility). The trial court properly admitted the evidence of the telephone threat as a means to dispel any misrepresentations left by Dominique’s testimony that she had not been in contact with Bryant since February 2004.

Even if the trial court properly admitted Liebl’s testimony about the threat, Dominique contends that her attorney was ineffective by asking the question that allowed admission of the evidence. To prevail on a claim of ineffective assistance of counsel, a defendant must show that her attorney’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced her trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 20 L. Ed. 2d 674
(1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995). The reasonableness inquiry presumes effective representation and requires a defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. McFarland, 127 Wn.2d at 336. To establish prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability the outcome of the trial would have been different. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). The defendant bears the burden of proving both prongs. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). If one of the two prongs of the test is missing, we need not inquire further. Strickland, 466 U.S. at 697.

Here, Dominique cannot show prejudice. While Liebl testified that the caller made threats against Abdullah’s daughter, Candice Bryant, he could not identify the caller. Dominique testified unequivocally that she did not call, and there was no further reference to the calls during the trial or in closing argument. The jury could have reasonably inferred that the calls were from Dominique’s sister, Dequena. In addition, Bryant’s testimony established that Dominique and Dequena previously assaulted Bryant, and that Dominique threatened to “whip her ass.” Bryant’s testimony was corroborated by Michael Brown and Officer Hammermaster. In context, admission of the telephone evidence did not affect the outcome of Dominique’s trial. Because Dominique cannot show prejudice, we need not ask whether her attorney was deficient.

Dominique also contends that her lawyer provided ineffective assistance of counsel by failing to object to instruction No. 5, an inconsistent jury instruction that allowed the jury to consider Dominique’s juvenile conviction for assault when assessing her credibility.[5] When jury instructions are inconsistent, we must determine whether the jury was misled as to its functions and responsibilities under the law. State v. Irons, 101 Wn. App. 544, 559, 4 P.3d 174 (2000). Challenges to jury instructions must be reviewed in the context of the instructions as a whole. State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136 (2006).

Neither party disputes that the inconsistent jury instruction should not have been given. Dominique’s prior conviction was admitted as evidence for the sole purpose of determining motive. The jury was given instruction No. 13, a limiting instruction that told the jury to consider evidence of the “interactions” between Dominique and Bryant “for the limited purpose of deciding how those interactions may tend to prove motive to commit the robbery alleged in this case” and not for any other purpose. But instruction No. 5 told the jury that it could consider the conviction when thinking about Dominique’s credibility:

Evidence that the defendant has previously been convicted of a crime is not evidence of the defendant’s guilt. Such evidence may be considered by you in deciding what weight or credibility should be given to the testimony of the defendant and for no other purpose.

In the context of the evidence and the instructions as a whole, the instruction was not misleading. Dominique’s prior conviction was already admitted under 404(b), and was before the jury to determine motive. When a trial court has engaged in balancing the probative value against the prejudicial effect of evidence for 404(b) purposes, and the evidence is admitted substantively in the State’s case in chief, little additional prejudice to the defendant results from admitting the evidence for impeachment purposes as well. State v. Brown, 113 Wn.2d 520,782 P.2d 1013 (1989), as corrected, 787 P.2d 906 (1990). Also, instruction No. 1 explicitly allowed the jury to consider the credibility of each party in making its decision, stating in part, “[y]ou are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness.” Because the jury was instructed that it was the sole judge of credibility, it was not misled by an additional instruction that it could consider the prior conviction when determining credibility. Dominique was not prejudiced by the inclusion of instruction No. 5.

Dominique filed a pro se statement of additional grounds, raising two additional issues for review. First, Dominique contends that the brief on appeal contains an inaccurate statement about the date of her arrest. Specifically, she states that she was arrested on January 10, 2006, not September 28, 2005. But the record does not indicate when Dominique was arrested.

Next, Dominique contends that her attorney was ineffective by failing to use Dominique’s cell phone records to show that she was in Renton at the time of the robbery. But the record supports the conclusion that the decision to exclude Dominique’s cell phone records was a legitimate trial strategy. During pretrial discussion about whether Dominique’s cell phone records would be introduced by either the State or the defense, Dominique’s attorney stated that she was in contact with the cell phone provider and would decide whether to use the records. Neither side introduced the cell phone records at trial.

We affirm.