State of Washington v. Dorell Nickerson

Opinion

FILED

May 7,2013

In the Office of the Clerk of Court

W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, ) ) No. 30552-0-111 Respondent, ) ) v. ) ) DORELL NICKERSON, ) UNPUBLISHED OPINION ) Appellant. )

SIDDOWAY, J. - Dorell Nickerson appeals his conviction of felony violation of a

domestic violence no-contact order restricting contact with his wife. He claims his

lawyer was ineffective for failing to request a jury instruction explaining the limited

purpose for which evidence of Mr. Nickerson's prior assault of his wife was admitted as

evidence. Courts have long recognized that reasonable defense lawyers may elect to

forgo such instructions to avoid emphasizing damaging evidence. Yet Mr. Nickerson

offers no reason why his lawyer's action was not tactical.

Because he shows no conduct by his lawyer that falls below an objective standard

of reasonableness and presents no other viable issue in his pro se statement of additional

grounds, we affirm. No. 30552-0-II1 State v. Nickerson

FACTS AND PROCEDURAL BACKGROUND

Dorell Nickerson is married to Sonia Kellerman Nickerson. During their troubled

relationship there has been a series of protective orders prohibiting him from having

contact with her. As of October 2011, a no-contact order was in place.

On the evening of October 11,2011, Eliseo Barreiro, one of Ms. Nickerson's

neighbors, called 911 to report the sounds of screaming and fighting coming from Ms.

Nickerson's apartment. Before police arrived, Mr. Barreiro saw a man leaving her

apartment and Ms. Nickerson "all beat up in the door, in her door well." Report of

Proceedings (RP) at 154. Although Mr. Barreiro did not know Mr. Nickerson, he was

later able to identifY him as the man who left the apartment.

When officers arrived, Ms. Nickerson had, among other injuries, a visible

laceration on her forehead. She told officers that she had fallen, but later added that Mr.

Nickerson had accused her of cheating on him and, when she answered that the man

about whom her husband was concerned was a friend, "I got socked in my [forehead] and

1 now have a cut in [my forehead]." Ex. 17. Mr. Nickerson was located within a block of

the apartment shortly after the arrival of the officers and was arrested for violation of the

no-contact order.

The State charged Mr. Nickerson with one count of felony violation of a domestic

violence no-contact order. It alleged alternative means, charging that he knowingly

violated the restraint provisions in the no-contact order and "did intentionally assault

No. 30552-0-111 State v. Nickerson

another in a manner that does not amount to an assault in the first or second degree and/or

engaged in conduct that was reckless and created a substantial risk of death or serious

physical injury" to Ms. Nickerson and, alternatively, violated the order while having "at

least two prior convictions for violating the provisions of an order issued under Chapters

7.90, 9.94A, 10.99,26.09,26.10,26.26,26.50, or 74.34 RCW." Clerk's Papers at 3-4.

The former means (an assault in the course of violating an order) is a class C felony

under subsection (4) ofRCW 26.50.110. The latter means (violation of an order

following conviction of two prior violations) is a class C felony under subsection (5) of

RCW 26.50.110.

At trial, the State offered certified copies ofjudgments and sentences showing that

Mr. Nickerson had three prior convictions for violating protection and no-contact orders,

an element of the offense under subsection (5). The court admitted the judgments and at

the close of evidence gave a limiting instruction, cautioning the jurors that

[c ]ertain evidence has been admitted in this case for only a limited purpose. This evidence consists of certified copies ofjudgment and sentences and may be considered by you only for the purpose of determining if defendant has been previously convicted of a violation of a no contact order. You may not consider the contents of the judgment and sentences for any other purpose. Any discussion of the evidence during your deliberations must be consistent with this limitation.

RP at 174.

The State also sought to offer evidence that Mr. Nickerson had a prior conviction

for domestic violence assault against Ms. Nickerson. Its reason for offering evidence of

No.30552-0-III State v. Nickerson

this prior conviction was because Ms. Nickerson had refused to appear voluntarily as a

witness for the State and it feared she would recant her allegation that Mr. Nickerson hit

her. In that event, it argued, the prior assault would help the jury understand why she

might be recanting. The court analyzed the admissibility of the evidence under ER

404(b) and ruled that it would be admitted in the event Ms. Nickerson did recant,

explaining:

[I]fMs. Kellerman presents recantation testimony, the assault [domestic violence] ... would also be admissible. It would be admissible to show her state of mind, it would be admissible so the jury can evaluate the relationship between the parties. Although it certainly is ... prejudicial, it is also probative of why Ms. Kellerman may have told one story at one point and another story at another point. And that can come in if indeed that is how her testimony comes out in court.

RP at 28-29.

At trial, Ms. Nickerson did recant her original statement that Mr. Nickerson hit

her. She denied that Mr. Nickerson was at her apartment on the evening of October 11

and claimed she sustained her injuries by falling and sliding into a cabinet door. She also

denied that her relationship with Mr. Nickerson had ever become violent. In explanation

of her original statement to police, she testified, "My daughter was there, she coaxed me

into writing a statement 'cause I was on medications. The cops threatened me about

taking to jail." RP at 60.

Following Ms. Nickerson's testimony, the State offered and the court admitted a

certified copy of the judgment and sentence of Mr. Nickerson's prior conviction of

No. 30552-0-III State v. Nickerson

domestic violence assault against Ms. Nickerson. Mr. Nickerson's lawyer did not request

a limiting instruction addressing this judgment and sentence. The court did not give one.

Mr. Nickerson was found guilty and appeals.

ANALYSIS

Mr. Nickerson argues that he was prejudiced by the trial court's failure to instruct

the jury to consider his prior conviction of domestic violence assault for only a limited

purpose. Because his trial lawyer did not request a limiting instruction and the trial court

is not required to give such an instruction sua sponte, see State v. Russell, 171 Wn.2d

118, 124,249 P.3d 604 (2011), he argues that he was deprived of his Sixth Amendment

right to effective assistance of counsel.

To demonstrate ineffective assistance of counsel, a defendant must show that his

lawyer's representation was deficient and the deficient representation prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. ct. 2052, 80 L; Ed. 2d

674 (1984). Representation is deficient if it falls "below an objective standard of

reasonableness based on consideration of all the circumstances." State v. McFarland,

127 Wn.2d 322, 334-35,899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222,

225-26, 743 P.2d 816 (1987)). Prejudice occurs when but for "counsel's unprofessional

errors, the result of the proceeding would have been different." ld. at 335. If a party fails

to satisfY either element, the reviewing court need not consider both prongs. State v.

Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

No. 30552-0-111 State v. Nickerson

"Judicial scrutiny of counsel's performance must be highly deferential" and "a

court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action 'might be considered

sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S.

91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)). Tactical decisions cannot form the basis

for a claim of ineffective assistance of counsel. McFarland, 127 Wn.2d at 336 (citing

State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994)).

While evidence of prior misconduct is not admissible to show that a defendant had

a propensity to engage in similar conduct, it is admissible for other purposes. In the case

of "prior acts of domestic violence, involving the defendant and the crime victim" it is

admissible for the purpose of "assist[ing] the jury in judging the credibility of a recanting

victim." State v. Magers, 164 Wn.2d 174, 186, 189 P.3d 126 (2008). Where evidence is

admissible for one purpose but not for another, a defendant is entitled to a limiting

instruction upon request. State v. Gresham, 173 Wn.2d 405, 423-24,269 P.3d 207

(2012).

Courts have long recognized that deciding whether to request a limiting

instruction-which may only serve to emphasize damaging evidence-is ordinarily a

tactical decision. See State v. Price, 126 Wn. App. 617, 649, 109 P.3d 27 (2005) and

cases cited therein; State v. Embry, 171 Wn. App. 714, 762,287 P.3d 648 (2012), review

No.30552-0-III State v. Nickerson

denied, No. 88162-6 (Wash. May 1, 20l3), and cases cited therein; United States v.

Gregory, 74 F.3d 819,823 (7th Cir. 1996) (characterizing the decision not to request a

limiting instruction as "solidly within the accepted range of strategic tactics employed by

tria1lawyers in the mitigation of damning evidence"). Accordingly, a party who claims

deficient performance for counsel's failure to request a limiting instruction must be able

to explain why, in the defendant's particular case, the decision was not tactical.

Mr. Nickerson fails to meet this burden. He offers only the bald assertion that the

failure to request the instruction was not tactical. This is plainly insufficient.

Because he does not demonstrate ineffective assistance, we need not reach the

issue of whether Mr. Nickerson has shown prejudice in light of the substantial evidence

against him.

STATEMENT OF ADDITIONAL GROUNDS

In a pro se statement of additional grounds (SAG), Mr. Nickerson raises two

additional claimed errors.

First, he claims that two jurors saw him being escorted in handcuffs to a holding

cell. He represents that "Judge O'Connor did striked [sic] them out but she did not

replaced [sic] them. Instead, she allowed both jurors who saw me to go back in the

deliberation room during my trial and until it was over." SAG at 1. There is no reference

in the record on appeal to any juror seeing Mr. Nickerson in handcuffs or to any jurors

being stricken or excused. Because any facts that support Mr. Nickerson's allegations are

No. 30552-0-111 State v. Nickerson

outside the record, his argument must be considered, if at all, in a personal restraint

petition. E.g., State v. Norman, 61 Wn. App. 16,27-28,808 P.2d 1159 (1991).

Second, he claims that his wife was allowed to testify against him without his

consent, in violation ofRCW 5.60.060. RCW 5.60.060 contains two distinct privileges

for spouses: a testimonial privilege and a confidential communications privilege. See

RCW 5.60.060(1).

The testimonial privilege, on which Mr. Nickerson relies, provides that ordinarily

a spouse cannot be examined at trial without the other spouse's consent. See Barbee v.

Luong Firm, PLLC, 126 Wn. App. 148, 155, 107 P.3d 762 (2005). The privilege may be

waived and therefore applies only if timely asserted, before the spousal testimony. State

v. Clark, 26 Wn.2d 160,168-69,173 P.2d 189 (1946), overruled, inpart, on other

grounds by State v. Burden, 120 Wn.2d 371,841 P.2d 758 (1992). The privilege is

subject to a common law personal violence exception and cannot be used to bar

testimony of an injured spouse in a criminal proceeding against the perpetrator. State v.

Thornton, 119 Wn.2d 578, 583, 835 P.2d 216 (1992).

Mr. Nickerson does not demonstrate that the privilege was timely asserted. It

likely was not, given that this is not a case in which it could be invoked. The privilege

may have been waived but it was, in any event, unavailable.

No.30552-0-II1 State v. Nickerson

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 RCW

2.06.040.

Sid~/(J=· WE CONCUR:

Brown, J.