State v. Mohamed ( 2016 )

/ F I t;E ",
IN CLERKS OFFICE
IUPIII!ME COURT, ST.t.TE OF WASHII«mlN
DATE JUL 2 1 2ll16
~~~~·
~ CHIEF JIJfJTICE
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, ) No. 92261-6
)
Petitioner, )
) EnBanc
v. )
)
SAYIDEN HUSSEIN MOHAMED, ) Filed .IUL 2 i 20!6
)
Respondent. )
______________________ )
YU, J.-This case requires us to determine whether it is permissible to
impeach a hearsay declarant with his or her prior convictions under certain
circumstances. ER 806 allows for impeachment of a hearsay declarant as if the
declarant were a testifying witness. In this case, the defendant did not testify and
his own out-of-court statements were admitted into evidence through his expert
witness' testimony. Defense counsel expressly declined a limiting instruction
offered by the trial court regarding the purpose of the defendant's statements. The
State then cross-examined the expert witness with the defendant's previously
admitted prior convictions pursuant to ER 806.
State v. Mohamed, No. 92261-6
The defendant contends that his out-of-court statements were not admitted
for the truth of the matter asserted, barring impeachment pursuant to ER 806.
Because defense counsel declined an instruction that would have limited the
evidence to its proper purpose, we hold that the statements were also offered for
their truth and that impeachment of the defendant's credibility was therefore
permissible pursuant to ER 806. Consequently, we reverse the Court of Appeals
and reinstate the convictions.
FACTUAL AND PROCEDURAL HISTORY
The underlying facts of defendant Sayiden Mohamed's arrest are
straightforward and undisputed. Two police officers were dispatched to the
defendant's residence to follow up on several 911 hang-up calls that had originated
from the house. Upon speaking with him, the officers observed that the defendant
was intoxicated but determined that no further action was needed. Shortly after
ending the initial contact, the officers received information that there was an
outstanding warrant for the defendant's arrest. When the officers returned to carry
out the arrest, the defendant became hostile and belligerent and resisted the
officers' attempts to place him in the patrol car. While the officers were in the
process offorcibly subduing him until backup arrived, the defendant spit in both of
the officers' faces. He continued to spit at the officers even after a spit mask was
placed over his head. Once the defendant was restrained, the officers were able to
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State v. Mohamed, No. 92261-6
place him in the patrol car and take him to jail. The defendant was charged with
two counts of third degree assault for spitting on the arresting officers.
During pretrial motions, the State moved to have the defendant's prior
convictions involving dishonesty or false statements admitted for impeachment
purposes pursuant to ER 609(a)(2), should the defendant choose to testify. The
motion was granted by agreement between the parties.
The defendant did not testify at trial, but sought to establish a diminished
capacity defense based on extreme intoxication. The only evidence that the
defendant offered was expert testimony from Dr. Robert Julien, a pharmacologist
specializing in the effect of drugs on brain function. Anticipating that Dr. Julien's
testimony would relate out-of-court statements made by the defendant, the State
filed a supplemental trial memorandum before Dr. Julien took the stand to apprise
the court of its intention to cross-examine Dr. Julien with the defendant's
previously admitted prior convictions pursuant to ER 806.
Determining that impeachment was permissible in accordance withER 806,
the court granted the State's motion to cross-examine Dr. Julien with the
defendant's prior convictions. The court advised counsel that a limiting instruction
is typically given when "an expert was going to be relating material that was not
admissible as substantive evidence ... explaining to the jury the limited purposes
under which this material can be offered." Verbatim Report ofProceedings (VRP)
3
State v. Mohamed, No. 92261-6
(July 1, 2014) at 27. Consequently, the court decided to prohibit the prosecution
from specifying the details of the convictions due to the "novel situation" of
"indirect impeachment" that was presented. Id. at 28-29.
Additionally, before Dr. Julien testified, the court offered to provide a
limiting instruction to the jury stating that the defendant's out-of-court statements
were offered only to show the basis of Dr. Julien's opinion. The State initially
agreed to the instruction, but changed its position after defense counsel expressly
requested that no instruction be offered at all. The court agreed not to give the
limiting instruction prior to Dr. Julien's testimony.
Dr. Julien testified that the defendant was in a state of alcohol-induced
blackout that prevented him from forming the requisite legal intent to commit
assault. His opinion was based on a phone interview conducted with the defendant
and a review of the police and witness reports. During his testimony, Dr. Julien
related the defendant's out-of-court statements regarding the quantity of alcohol he
had consumed. Based on the defendant's self-report, Dr. Julien estimated that the
defendant's blood alcohol concentration (BAC) was 0.4 percent at the time of the
arrest, "enough to guarantee blackout." Id. at 55.
The State cross-examined Dr. Julien with the defendant's prior convictions
for theft. Dr. Julien conceded that the accuracy of his conclusions depended on the
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State v. Mohamed, No. 92261-6
veracity of the defendant's statements, but testified that he would not have taken
the prior convictions into consideration in generating his report.
After the case was submitted to the jury, defense counsel informed the court
that she had just discovered State v. Lucas, 167 Wash. App. 100, 271 P.3d 394
(2012), 1 which she believed prohibited impeachment of the defendant with his
prior convictions through cross-examination of the expert witness. Counsel stated
that she would file a motion for mistrial based on Lucas if the jury came back with
a guilty verdict. The jury found the defendant guilty as charged, and defense
counsel filed a motion for mistrial or a new trial in the alternative.
After hearing arguments on the defense's motion, the court concluded that
Lucas was controlling precedent and it had erred by permitting impeachment of the
defendant pursuant to ER 806. The court granted the motion for new trial in
accordance with CrR 7.5(a)(6). The State appealed.
Finding the case indistinguishable from Lucas, Division One of the Court of
Appeals affirmed the trial court's decision to grant the motion for new trial in a
published opinion. State v. Mohamed, 189 Wash. App. 533, 535, 358 P.3d 442
(2015). The State then petitioned for review to this court, which we granted
pursuant to RAP 13.4(b). State v. Mohamed, 184 Wash. 2d 1033 (2016).
1
Although Lucas was decided in 2012, neither defense counsel nor the trial court was
aware of the case.
5
State v. Mohamed, No. 92261-6
ANALYSIS
"Except where questions of law are involved, a trial judge is invested with
broad discretion in granting motions for new trial. The exercise of that discretion
will not be disturbed on appeal absent an abuse of discretion." State v. Williams,
96 Wash. 2d 215, 221, 634 P.2d 868 (1981). Where, as here, a motion for new trial is
based on an alleged legal error in interpreting an evidentiary rule, the order
granting a new trial is reviewed de novo. State v. Foxhoven, 161 Wash. 2d 168, 174,
163 P.3d 786 (2007).
A. DEFENDANT'S HEARSAY STATEMENTS
Out-of-court statements "offered in evidence to prove the truth of the matter
asserted" are hearsay, ER 801(c), and generally inadmissible, ER 802. When
hearsay statements are admitted into evidence, however, ER 806 permits
impeachment of the hearsay declarant as if he or she had taken the stand as a
witness:
When a hearsay statement ... has been admitted in evidence,
the credibility of the declarant may be attacked, and if attacked may
be supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness.
As the rule states, impeachment of the declarant is permissible only when a
hearsay statement is admitted into evidence. See State v. Fish, 99 Wash. App. 86,
95, 992 P.2d 505 (1999) ("ER 806 authorizes impeachment of a declarant only
when the declarant's statement has been offered to prove the truth of the matter
6
State v. Mohamed, No. 92261-6
asserted. If the statement is offered for some other nonhearsay purpose, ER 806
does not apply."). Thus, the applicability ofER 806 in this case depends on
whether the defendant's out-of-court statements were offered for the truth of the
matter asserted, therefore constituting hearsay, or if they were limited to some
other nonhearsay purpose.
To determine whether the defendant's statements were offered for their truth
or some other nonhearsay purpose, we must look closely at the events that
unfolded at trial to evaluate the context in which the statements were actually
offered and used. The record shows that the defendant's statements were not
offered solely for the nonhearsay purpose of providing the factual basis for
Dr. Julien's expert opinion; they were also offered for the hearsay purpose of
proving their truth. Therefore, impeachment of those statements with the
defendant's prior convictions was permissible in accordance withER 806.
The defendant contends that his out-of-court statements were not offered for
their truth, but rather for the nonhearsay purpose of showing the basis for
Dr. Julien's expert opinion. It is unquestionable that this is a nonhearsay purpose
for which the defendant's statements were relevant, see ER 703 and 705, but the
defendant's assertion is not supported by what actually happened at trial. It is
evident from the record that the defendant's statements were, in fact, offered for
their truth because (1) the defendant offered his own out-of-court statements,
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State v. Mohamed, No. 92261-6
(2) defense counsel expressly declined a limiting instruction, (3) the defendant's
out-of-court statements were the only evidence that could support the expert
witness' opinion, and (4) defense counsel agreed to an instruction that directed the
jury to consider the defendant's credibility. Based on these key facts, the
defendant's statements were effectively admitted for their truth. Furthermore,
Lucas must be overturned to the extent that the decision does not mention whether
or not a limiting instruction had been offered, given, or declined in that case.
1. Defense counsel declined a limiting instruction; therefore, the jury
was permitted to consider the defendant's statements for their truth
Expert witnesses are permitted to base their opinions on otherwise
inadmissible evidence, so long as it is "of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the subject." ER 703.
An expert may testify to these underlying facts or data. ER 705. It was
permissible for Dr. Julien to rely on the defendant's out-of-court statements
regarding how much alcohol he consumed to calculate the defendant's BAC. The
issue that the trial court wrestled with was the fact that the out-of-court statements
were admissible in accordance withER 705 to show the basis of Dr. Julien's
8
State v. Mohamed, No. 92261-6
opinion, but inadmissible as substantive evidence of how much alcohol the
defendant had actually consumed. 2
When evidence is admissible for one purpose but inadmissible for another,
ER 105 directs that "the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly." Recognizing that the defendant's
statements could be used by the jury for an improper purpose, the trial court
offered to provide a limiting instruction and even proffered proposed language:
The limiting instruction that I have in mind goes something like
this: Ladies and gentlemen, you are about to hear the testimony of
Dr. Robert Julien. And before he takes the stand, the Court is going to
provide you the following instruction. Statements made by the
defendant to Dr. Julien are being offered only for the limited purpose
of seeking to help explain Dr. Julien's opinions and are to be
considered by you only for that limited purpose.
2
It is undisputed that an expert witness may rely on and testify to otherwise inadmissible
evidence that forms the basis of his or her opinion pursuant to ER 703 and 705. See In re Det. of
Coe, 175 Wash. 2d 482, 513-14, 286 P.3d 29 (2012) ("A trial court may allow an expert to reveal
the underlying basis for her opinion if doing so will help the jury understand the expert's
opinion."); State v. Russell, 125 Wash. 2d 24, 74, 882 P.2d 747 (1994) ("ER 703 thus permits
expert opinion testimony based on hearsay data that would be otherwise inadmissible in
evidence, while ER 705 ... authorizes the admission of expert opinion testimony without prior
disclosure of the facts or data which underlie the opinion."). The defendant incorrectly asserts
that allowing impeachment pursuant to ER 806 is inconsistent with these evidentiary rules. The
cases that the defendant relies on for this point are unhelpful because they involve testimony that
was limited to its proper purpose or was properly excluded by the trial court. See State v.
Martinez, 78 Wash. App. 870, 881, 899 P.2d 1302 (1995) (trial court did not abuse its discretion in
limiting the scope of expert witness' testimony); State v. Anderson, 44 Wash. App. 644, 652-53,
723 P.2d 464 (1986) (exclusion of defense's expert witness testimony regarding defendant's out-
of-court statements was not an abuse of discretion); State v. Fullen, 7 Wash. App. 369, 383-84, 499
P.2d 893 (1972) (exclusion of psychiatrist's testimony about defendant's out-of-court statements
was harmless error). The defendant's hearsay statements in this case were neither properly
limited nor excluded.
9
State v. Mohamed, No. 92261-6
VRP (July 1, 2014) at 29-30. Plainly, this instruction would have been sufficient
to limit the defendant's out-of-court statements to their proper purpose. Had the
court given this instruction, the evidence would have been admitted solely for a
nonhearsay purpose, barring impeachment pursuant to ER 806.
However, after the court offered its limiting instruction, the following
colloquy took place:
MS. SILBOVITZ [defense counsel]: Your Honor, I'm
considering it and thinking it through my head. Generally I'm not in
favor oflimiting instructions. I'm not-- I'm not asking you to provide
the limiting instruction.
THE COURT: Understood. With that in mind, does that
change the State's position at all?
MR. DICKINSON [deputy prosecutor]: Well, if it's a tactical
decision by the defense not to give a limiting instruction, I don't
disagree then. I think then we should not give it.
I d. at 31 (emphasis added). Thus, by the agreement of the parties, the court did not
offer a limiting instruction prior to Dr. Julien's testimony.
We presume that a jury will follow the instructions provided to it. State v.
Kalebaugh, 183 Wash. 2d 578, 586, 355 P.3d 253 (2015) (citing State v. Grisby, 97
Wash. 2d 493, 499, 647 P.2d 6 (1982)). The corollary to this presumption is that
where evidence could be relevant for multiple purposes, a jury cannot be expected
to limit its consideration of that evidence to a proper purpose without an
appropriate instruction to that effect. Moreover, in the absence of a limiting
instruction, the jury is permitted to consider the evidence for any purpose,
10
State v. Mohamed, No. 92261-6
including its truth. See State v. Myers, 133 Wash. 2d 26, 36, 941 P.2d 1102 (1997)
("[A]bsent a request for a limiting instruction, evidence admitted as relevant for
one purpose is deemed relevant for others."); State v. Kontrath, 61 Wash. 2d 588,
591, 379 P.2d 359 (1963) ("The court's refusal to give appellant's requested
instruction allowed the jury to give unlimited consideration to the evidence.").
In fact, the jury here was actually instructed that "[i]n order to decide
.whether any proposition has been proved, you must consider all of the evidence
that [the court] ha[s] admitted that relates to the proposition." Clerk's Papers (CP)
at 90. There was further instruction to "consider information that the defendant
has been convicted of a crime only in deciding what weight or credibility to give
the defendant's statements." ld. at 94 (emphasis added). Defense counsel
explicitly agreed to this instruction without objection or modification. 3 In the
absence of any limitations, the jury was not only permitted to consider the
defendant's statements as substantive evidence, not merely as the factual basis of
the expert's opinion, but was also directed to evaluate the defendant's statements
for their credibility.
3
The jury instruction that was given was a slight modification to the recommended jury
instruction for impeachment with prior conviction evidence when the defendant is a witness.
Compare CP at 94 (Instr. 4), with 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 5.05, at 172 (3d ed. 2008) (WPIC). Defense counsel's own proposed
jury instmction was identical to WPIC 5.05.
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State v. Mohamed, No. 92261-6
As the State correctly points out, "If a party wishes to offer a statement for a
non-hearsay purpose, that party must request an instruction precluding
consideration of the truth of the statement." Suppl. Br. ofPet'r at 6. We have held
that when a party fails to request a limiting instruction, that party is precluded from
arguing that the lack of a limiting instruction was harmful error. State v. A than,
160 Wash. 2d 354, 383, 158 P.3d 27 (2007). Here, defense counsel did not merely
fail to request a limiting instruction; she expressly declined the court's offer to
provide one. A party cannot refuse an instruction that would have limited the
evidence to its proper purpose and then later claim that the evidence should be
treated as if the limiting instruction had been given. Cf State v. Boyer, 91 Wash. 2d
342, 345, 588 P.2d 1151 (1979) (invited error doctrine). 4
2. Defendant's out-ofcourt statements were the only evidence of a
foundational fact necessary to his theory of the case
The consequences of declining a limiting instruction were compounded by
the way in which the defendant's out-of-court statements were used to support his
4
The defendant asserts the State, as the opponent to the evidence, had the burden of
requesting a limiting instruction. Suppl. Br. ofResp't at 17-20. We have held that failure to
request a limiting instruction waives the right to assign error to the lack of a limiting instruction
on appeal. See Lockwoodv. AC&S, Inc., 109 Wn.2d 235,255,744 P.2d 605 (1987); State v.
Newbern, 95 Wash. App. 277, 295-96, 975 P.2d 1041 (1999); State v. Barber, 38 Wash. App. 758,
771, 689 P.2d 1099 (1984). However, the State has not assigned error to the trial court's failure
to provide a limiting instruction, and we have consistently held that a trial court has no obligation
to provide a limiting instruction sua sponte. See State v. Russell, 171 Wash. 2d 118, 123-24,249
P.3d 604 (2011) (citingAthan, 160 Wash. 2d at 383; Myers, 133 Wash. 2d at 36; State v. Hess, 86
Wash. 2d 51, 52, 541 P.2d 1222 (1975); State v. Noyes, 69 Wash. 2d 441, 447,418 P.2d 471 (1966)).
12
State v. Mohamed, No. 92261-6
theory of the case. Because these statements were the only evidence of a
foundational fact on which his only defense rested, it was necessary for the jury to
consider the statements for their truth.
The defendant's voluntary intoxication defense was based solely on
Dr. Julien's testimony. Since there was no toxicology report, Dr. Julien had to
calculate the defendant's BAC based on the defendant's self-report of how much
alcohol he had consumed prior to the arrest. The officers testified that they
believed the defendant was intoxicated because he smelled of alcohol and was
slurring his speech, but this testimony only corroborates that the defendant was
intoxicated. It provides no basis for calculating the defendant's BAC. 5
Furthermore, Dr. Julien's testimony was predicated entirely on the
truthfulness ofthe defendant's statements. On cross-examination, Dr. Julien
admitted that if the defendant's self-report was "garbage," then his conclusions
would also be "garbage." VRP (July 1, 2014) at 69. Dr. Julien further testified
that he did not assess the veracity of the defendant's statements, but stated that he
would "have to leave it to the jury, to the trier of fact, to determine the accuracy, or
lack thereof, of this individual." Id. at 68-69. The truthfulness of defendant's out-
5
Respondent's counsel conceded at oral argument that there was no independent
corroborating evidence of the quantity of alcohol the defendant had consumed. Wash. Supreme
Court oral argument, State v. Mohamed, No. 92261-6 (June 7, 20 16), at 17 min., 51 sec., audio
recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org.
13
State v. Mohamed, No. 92261-6
of-court statements went directly to the viability of his voluntary intoxication
defense. Thus, in order to determine the weight and credibility of Dr. Julien's
opinion, the jury had to consider whether the defendant's statements were truthful.
That the defendant's statements were, in fact, offered for their truth is made
evident by the fact that if the defendant's statements were false, Dr. Julien would
not have had any basis for his opinion and his testimony would have been
irrelevant. The trial court has the discretion to exclude evidence that lacks
relevance. 6 ER 402. Thus, within the context of the defendant's theory of the
case, the out-of-court statements were, in effect, offered for their truth, not merely
to show the basis of the expert's opinion.
B. STATE V. LUCAS
The defendant contends that the trial court and Court of Appeals correctly
determined that Lucas barred impeachment with his prior convictions in this case.
The Court of Appeals in Lucas correctly stated that "out-of-court statements
offered at trial as the basis of an expert's opinion are not hearsay and, thus, do not
expose the declarant to impeachment under ER 806." 167 Wash. App. at 109-10.
However, this statement is true only if the evidence is limited to its proper purpose.
The court made no mention of whether a limiting instruction was offered to the
6 In fact, before Dr. Julien took the stand, the prosecution brought a foundational
objection to Dr. Julien's testimony, asserting that he lacked the basis for his opinion because he
relied solely on the defendant's self-report.
14
State v. Mohamed, No. 92261-6
jury. Consequently, Lucas is overturned to the extent that it bars impeachment
pursuant to ER 806 even in instances where hearsay evidence is not limited to its
proper purpose. 7
C. IMPEACHMENT WITH PRIOR CONVICTION EVIDENCE
ER 806 permits the credibility of a hearsay declarant to be attacked "by any
evidence which would be admissible for those purposes if declarant had testified as
a witness." (Emphasis added.) According to the plain language of the rule, the
defendant could be impeached with his prior convictions, which were admissible
pursuant to ER 609 and had been admitted for impeachment purposes during
pretrial motions.
Since the jury had to determine whether the defendant's out-of-court
statements to Dr. Julien were true, the jury was entitled to consider the evidence
necessary to carry out this responsibility. This includes evidence showing that the
declarant is dishonest or untrustworthy. The Rules of Evidence contemplate that
prior conviction evidence is admissible for this purpose. ER 609(a)(2).
Although the danger of undue prejudice resulting from the admission of
prior convictions is undeniable, the defendant makes no assertion that
impeachment with his prior convictions was unduly prejudicial. In fact, defense
7 Defendant's appellate counsel stated at oral argument that she was defense counsel in
Lucas and that a limiting instruction was never raised. Wash. Supreme Court oral argument,
supra, at 24 min., 22 sec.
15
State v. Mohamed, No. 92261-6
counsel's only objection at trial was for relevance. Consequently, the question of
prejudice is not before us, and impeachment pursuant to ER 806 was permissible in
accordance with the plain language of the evidentiary rules.
CONCLUSION
ER 806 permits impeachment of a hearsay declarant to the same extent as a
witness. It is a broad rule that applies to all declarants, all forms of impeachment,
all types of cases, and all parties. The purpose of this rule is to provide the jury
with the information necessary to weigh the credibility of the evidence presented.
This particular case presents an unexpected but permissible use ofER 806:
impeachment of a nontestifying defendant in a criminal case through cross-
examination of his own expert witness. In light of the facts before us, we hold that
where (1) a defendant offers his or her own out-of-court statements through an
expert witness, (2) no limiting instruction is requested or provided, (3) the jury is
directed to consider the defendant's credibility, and (4) no other evidence was
offered that could form the foundation of the expert's opinion, the defendant's out-
of-court statements are admitted for the truth ofthe matter asserted and may be
considered by the jury as substantive evidence. Under these specific
circumstances, impeachment pursuant to ER 806 is allowed.
We reverse the Court of Appeals and reinstate the conviction.
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State v. Mohamed, No. 92261-6
WE CONCUR:
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