State Of Washington v. Mathew Clark Healea ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 77413-1-1
Respondent, )
) DIVISION ONE
v. )
)
MATHEW CLARK HEALEA, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: February 25, 2019
)
SMITH, J. — Mathew Healea appeals his conviction for fourth degree
domestic violence assault. - Healea argues that the trial court erred by excluding
a defense witness's testimony, refusing to instruct the jury on the affirmative
defense of lawful defense of another, and denying his request for a missing
witness instruction. He also argues that the trial court violated the antiattachment
provision of the Social Security Act, 42 U.S.C. § 407(a), by imposing mandatory
legal financial obligations (LF05) when his only income is from Social Security
disability benefits.
We affirm Healea's conviction. The expected defense witness testimony
was not relevant to the assault, the evidence presented did not support an
instruction on the lawful defense of another, and a missing witness instruction
was not warranted because the absent witness was not peculiarly available to
the State. But we remand to the trial court to amend the judgment and sentence
No. 77413-1-1/2
to specify that the LFOs imposed may not be satisfied out of any funds subject to
the antiattachment statute.
FACTS
On August 20, 2016, Pamela Aguilar and Harvey Avalos were driving
down Maple Valley Highway when they saw a man and woman, later identified
as Healea and C.W., on the side of the road. C.W: had her thumb out. Aguilar
and Avalos decided to pick up C.W., but before C.W. could get into the car,
Healea grabbed her by the neck and arm and dragged her down a steep
embankment away from the road and toward a residence.
C.W. screamed for help, and Avalos called 9-1-1. Aguilar watched C.W.
try to fight off Healea, grabbing at the ground while Healea tried to pick her up.
C.W. pushed and kicked Healea and screamed that Healea was going to kill her.
Healea attempted to throw C.W. over his shoulder 'multiple times but was
unsuccessful. Eventually, C.W. dropped a backpack she was carrying onto the
ground. Healea yelled at Aguilar and Avalos several times to go away. C.W.
then grabbed on to a tree, and Healea hit her in the face and on the chest in an
attempt to loosen her grip on the tree. When that failed, Healea left C.W. to grab
her discarded backpack. At that point, C.W. ran to'Aguilar's car and Aguilar
drove C.W. to a store, where they were met by first responders.
The State charged Healea by information with one count of unlawful
imprisonment(domestic violence) and one count of assault in the fourth degree
(domestic violence). Aguilar and several of the first responders testified at trial.
C.W. and Healea did not testify, but defense counsel argued that Healea
2
No. 77413-1-1/3
restrained C.W. to protect her from hitchhiking with strangers while high on
methamphetamines. The jury found Healea guilty of assault in the fourth degree
(domestic violence) but acquitted him of the unlawful imprisonment charge. At
sentencing, the trial court imposed $600 in mandatory LF0s.
Healea appeals.
ANALYSIS
Admission of Defense Witness Testimony
Healea argues that the trial court violated his right to present a defense by
excluding the testimony of Deputy Jeffrey Dorsch, who would have testified that
C.W. had a history of self-harm, which is relevant to her credibility and capacity.
We disagree.
We review a trial court's evidentiary rulings for abuse of discretion. State
v. Clark, 187 Wash. 2d 641, 648, 389 P.3d 462(2017). A court abuses its discretion
when its exercise of discretion is manifestly unreasonable or based on untenable
reasons or on untenable grounds. State v. Black, 191 Wash. 2d 257, 266, 422 P.3d
881 (2018). Where the trial court excludes relevant defense evidence, we review
de novo whether the exclusion violates the defendant's constitutional right to
present a defense. Clark, 187 Wash. 2d at 648-49; State v. Jones, 168 Wash. 2d 713,
719, 230 P.3d 576 (2010).
"'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)). A defendant's right to an opportunity to be heard
3
No. 77413-1-1/4
in his defense, including the right to offer testimony, is basic but not absolute.
Jones, 168 Wash. 2d at 720. "Evidence that a defendant seeks to introduce 'must
be of at least minimal relevance.' Jones, 168 Wash. 2d at 720 (quoting State v.
Darden, 145 Wash. 2d 612, 622, 41 P.3d 1189 (2002)). "Defendants have a right to
present only relevant evidence, with no constitutional right to present irrelevant
evidence." Jones, 168 Wash. 2d at 720. Evidence is relevant if it has "any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence." ER 401. A trial court properly excludes evidence that is
"remote, vague, speculative, or argumentative because otherwise 'all manner of
argumentative and speculative evidence will be adduced,' greatly confusing the
issue and delaying the trial." State v. Kilgore, 107 Wash. App. 160, 185, 26 P.3d
308 (2001)(quoting State v. Jones,67 Wash. 2d 506, 512, 408 P.2d 247 (1965)),
aff'd on other grounds, 147 Wash. 2d 288, 53 P.3d 974 (2002)).
Here, Healea made an offer of proof that Deputy Dorsch would testify that
he performed a mental health check on C.W. on February 24, 2016, six months
before the assault. At the time, C.W. said she wanted to kill herself and she was
involuntarily committed as a result. Healea argued that this testimony was
relevant because it proved that C.W. had a history of self-harm and that Healea's
decision to protect C.W. from a risky activity like hitchhiking was reasonable.
The trial court did not allow Deputy Dorsch to testify, explaining that "[h]ad it
occurred on the same day of the event, I would be much more inclined to see it
as relevant evidence."
4
No. 77413-1-1/5
The trial court did not abuse its discretion by excluding Deputy Dorsch's
testimony. Testimony about a isolated incident involving C.W.'s mental state six
months before the assault is too remote to be relevant to Healea's actions on the
date of the assault. Therefore the exclusion of that testimony did not violate
Healea's right to present a defense.
Relying on Jones, Healea argues that the trial court should have admitted
Deputy Dorsch's testimony because it was of "high probative value." Jones, 168
Wash. 2d at 721. He is mistaken In Jones, a rape case, reversal was required
because the trial court refused to allow the defendant to testify that the sex was
consensual and to cross-examine the victim on consent. The Supreme Court
explained that the trial court erred because this evidence constituted the
defendant's "entire defense" and was therefore of "extremely high probative
value." Jones, 168 Wash. 2d at 721.
Here, although evidence of C.W.'s prior threat of self-harm may be a large
portion of Healea's defense, it s not "highly probative" because the incident
occurred many months before the assault. Unlike Jones, where the excluded
testimony concerned the rape itself, evidence of C.W.'s threat of self-harm is
remote in time to the assault. Therefore, Jones does not require reversal.
Instruction on Lawful Defense of Another
Healea argues that the trial court erroneously relieved the State of its
burden of proving each element of the crime when it refused to instruct the jury
on the affirmative defense of lawful defense of another. We disagree.
5
No. 77413-1-1/6
A defendant is entitled to have the jury instructed on his theory of the case
if there is evidence to support that theory. State v. Fisher, 185 Wash. 2d 836, 848,
374 P.3d 1185(2016). A trial court's failure to so instruct the jury is reversible
error. Fisher, 185 Wash. 2d at 849. In evaluating the defendant's evidence, the trial
court must view it in the light most favorable to him, Fisher, 185 Wash. 2d at 849.
"'The trial court is justified in denying a request for [an affirmative defense]
instruction only where no credible evidence appears in the record to support [it]."
Fisher, 185 Wash. 2d at 849 (alterations in original)(quoting State v. McCullum, 98
Wash. 2d 484, 488,656 P.2d 1064 (1983)). The defendant bears the burden of
production. Fisher, 185 Wash. 2d at 849. In Washington,
[t]he use, attempt, or offer to use force upon or toward the person
of another is not unlawful . ..
(3) Whenever used by a party about to be injured, or by
another lawfully aiding him or her, in preventing or attempting to
prevent an offense against his or her person . . . in case the force is
not more than is necessary.
RCW 9A.16.020. "The law allows defense of another person against a less-than-
life-threatening assault, so long as the degree of force the defendant uses is
limited to what a reasonably prudent person would find necessary under the
conditions as they appeared to that defendant." State v. Marquez, 131 Wash. App.
566, 575, 127 P.3d 786 (2006)(emphasis omitted).
Whether the defendant has produced sufficient evidence to raise an
affirmative defense is a matter of law. Fisher, 185 Wash. 2d at 849. If the basis for
the trial court's refusal to give the requested jury instruction is a lack of evidence
6
No. 77413-1-1/7
supporting an affirmative defense, this court reviews that refusal de novo.
Fisher, 185 Wash. 2d at 849.
Here, Healea proposed a jury instruction on the lawful defense of another.
Defense counsel argued that the instruction was necessary because "[C.W.]
placed herself in a dangerous position by being potentially under the influence of
methamphetamines along the side of a busy highway—such that Mr. Healea's
actions could be seen as a form of defense of her." The trial court refused
Healea's proposed instruction, explaining that
in the Court's view [defense of another] requires that there be
testimony in the record that the person who was lawfully aiding
another had a reasonable belief that that person was to be injured
and there's no evidence in the record to support that anyone had a
reasonable belief that she was about to be injured and, therefore,
needed the exertion of force against her.
Taking the evidence in a light most favorable to Healea, hitchhiking can be
a risky activity and Healea could have had a legitimate concern for C.W.'s safety
if she entered Aguilar's car. But the degree of force Healea used was more than
a reasonably prudent person would use in that situation. Aguilar testified that
Healea dragged C.W. down the embankment by her neck and arm, picked her up
and dropped her several times, and hit her on the face and chest while she was
holding on to a tree. Aguilar also testified that the altercation lasted for 20
minutes and that she and Avalos yelled to Healea and C.W. that the police were
on the way. Even considered in the light most favorable to Healea, this evidence
does not support a defense-of-another instruction. Healea's decision to continue
to restrain and hit C.W.for an extended period of time was not reasonable,
especially after hearing that the police were on their way. A reasonable person
7
No. 77413-1-1/8
in Healea's shoes would not have continued to use such force on C.W.
Therefore, there was not sufficient evidence to support an instruction on lawful
defense of another.
Missing Witness Instruction
Healea argues that the trial court violated his right to present a defense by
refusing a missing witness instruction as to C.W. We disagree.
When a party fails to call a witness it would naturally call if the witness's
testimony would be favorable, the "missing witness" doctrine permits the jury to
make an inference that the uncalled witness's testimony would have been
unfavorable. State v. Blair, 117 Wash. 2d 479, 485-86, 816 P.2d 718 (1991). But
the inference is not permitted when (1) the witness is not peculiarly available to
the party failing to call the witness;(2)the witness's testimony is unimportant or
cumulative; or (3) the circumstances do not establish, as a matter of reasonable
probability, that the party would not knowingly fail to call the witness unless the
witness's testimony would be damaging. Blair, 117 Wash. 2d at 488-90. In other
words, if a witness's absence can be explained, the jury is not permitted to infer
that the witness's testimony would have been unfavorable. Blair, 117 Wash. 2d at
489.
We review a trial court's refusal to give a requested instruction for abuse
of discretion. State v. Picard, 90 Wash. App. 890, 902, 954 P.2d 336 (1998).
Here, the State made a motion in limine to exclude any missing witness
argument. The prosecutor told the court that he had been in and out of COrit6tt
with C.W., who frequently changed her phone number, but that C.W. indicated
several months prior to trial that she had moved on with her life and "was
8
No. 77413-1-1/9
effectively not inclined to participate in the matter any further." C.W. then
changed her mind and set up a phone interview with the prosecutor and defense
counsel, but at the time of the meeting, she did not answer her phone or return
any voice mails. Less than a week before trial, C.W. contacted the prosecutor
with a new phone number and left a voice mail, asking if she had missed the
meeting. C.W. did not answer or return the prosecutor's subsequent calls.
Under these circumstances, which demonstrate that C.W. was not peculiarly
available to the State, the trial court did not abuse its discretion by refusing to
give a missing witness instruction.
Healea argues that C.W. was peculiarly available to the State because the
State had the ability to subpoena her for trial, which it did not do. But a witness is
not "peculiarly available" merely because the witness is subject to the subpoena
power. Blair, 117 Wash. 2d at 490. Therefore, this argument fails.
Healea also argues that C.W.'s interests were aligned with the State and
she was therefore peculiarly available to the State because Healea was not
permitted to contact her due to the criminal charges against him. But
[for a witness to be "available" to one party to an action,
there must have been such a community of interest between the
party and the witness, or the party must have so superior an
opportunity for knowledge of a witness, as in ordinary experience
would have made it reasonably probable that the witness would
have been called to testify for such party except for the fact that his
testimony would have been damaging.
State v. Davis, 73 Wash. 2d 271, 277, 438 P.2d 185 (1968), overruled on other
grounds, State v. Abdulle, 174 Wash. 2d 411, 275 P.3d 1113(2012). The fact that
Healea is prohibited from contacting C.W. does not indicate a community of
9
No. 77413-1-1/10
interest between C.W. and the State or the State's superior opportunity for
knowledge of C.W. such that C.W. is peculiarly available to the State. Healea's
argument is not persuasive.
Mandatory LFOs
Healea argues that the trial court's imposition of $600 in mandatory LFOs
violates the antiattachment provision of the Social Security Act because Social
Security disability benefits are his only income. We hold that the antiattachment
provision does not prohibit the imposition of LFOs, but remand to the trial court to
amend the judgment and sentence to indicate that the LFOs may not be satisfied
out of any funds subject to the antiattachment provision.
The Social Security antiattachment statute states:
The right of any person to any future payment under this
subchapter shall not be transferable or assignable, at law or in
equity, and none of the moneys paid or payable or rights existing
under this subchapter shall be subject to execution, levy,
attachment, garnishment, or other legal process, or to the operation
of any bankruptcy or insolvency law.
42 U.S.C. § 407(a)(emphasis added). Under this statute, "neither current nor
future social security payments are subject to seizure by any process of law."
State v. Catlinq, 2 Wash. App. 2d 819, 823, 413 P.3d 27, review granted, 191
Wash. 2d 1001 (2018). The United States Supreme Court has held that "other legal
process" requires the "utilization of some judicial or quasi-judicial mechanism,
though not necessarily an elaborate one, by which control over property passes
from one person to another in order to discharge or secure discharge of an
allegedly existing or anticipated liability." Wash. State Dep't of Soc. & Health
Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385, 123 S. Ct. 1017,
10
No. 77413-1-1/11
154 L. Ed. 2d 972(2003). Our Supreme Court has held that a trial court's
requirement that a defendant pay $15 per month in discretionary LFOs from her
Social Security benefits was prohibited as an "other legal process." City of
Richland v. Wakefield, 186 Wash. 2d 596, 609, 380 P.3d 459 (2016).
Here, the trial court ordered Healea to pay $600 in mandatory LFOs
despite evidence that his only income is from Social Security disability benefits.
Healea argues that the imposition of these mandatory LFOs is an "other legal
process" that is prohibited under Keffeler and Wakefield.
In State v. Catling, Division III of this court addressed whether the
imposition of mandatory LFOs on a defendant whose sole income is from Social
Security disability benefits constitutes a violation ofithe antiattachment statute.
Catling, 2 Wash. App. 2d at 822-23. The majority held that "[t]he anti-attachment
provision prevents levying against Social Security disability proceeds, but it does
not address the debt itself" because "[t]he statute distinguishes between the
imposition of LFOs and compelled payment of LFOS from the exempt proceeds
of a Social Security payment." Catling, 2 Wash. App. 2c1 at 826(emphasis omitted).
In so holding, the majority relied on In re Lampart, 306 Mich. App. 226, 856
N.W.2d 192(2014), where the Michigan Court of Appeals held that enforcement
of a restitution order against Social Security income benefits violated the
antiattachment clause, but that the restitution orderremained valid. Lampart,
306 Mich. App. at 245-46. The Michigan court reasoned:
If it were determined that Alexandroni's only asset, or source
of income, is and remains from SSDI benefits, 42 USC 407(a)
prohibits the use of legal process—including by a finding of
contempt—from reaching those benefits to satisfy the restitution
11
No. 77413-1-1/12
order. If, however, Alexandroni is found to have income aside from
her SSDI benefits, or other assets that are derived from other
sources, that income or those assets could be used to satisfy the
restitution award. The restitution order itself remains valid. Indeed,
Alexandroni's receipt of SSDI benefits does not immunize her from
the restitution order; rather, it merely prohibits the trial court from
using legal process to compel satisfaction of the restitution order
from those benefits. Because it is possible that Alexandroni may
have assets or may receive income from other sources in the
future, we affirm the trial court's refusal to cancel or modify
Alexandroni's restitution obligation.
Lampart, 306 Mich. App. at 245-46 (citation omitted). The Catlinq majority
concluded that the imposition of the mandatory LFOs was valid, but that remand
was necessary so the trial court could "amend its judgment and sentence to
indicate that the LFOs may not be satisfied out of any funds subject to 42 U.S.C.
§ 407(a)." Catlinq, 2 Wash. App. 2d at 826. This reasoning is persuasive, and we
adopt the same remedy.
Therefore, we affirm Healea's conviction and the imposition of mandatory
LFOs, but remand so that the trial court can amend the judgment and sentence
to specify that the LFOs may not be satisfied out of any funds subject to the
antiattachment statute.
WE CONCUR:
Ottu,A,
12