FILED
DEC 17,2013
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
DNISION THREE
STATE OF WASHINGTON, ) ) No. 30094-3-111 Respondent, ) ) v. ) ) TRACY LEE JOHNSON, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, C.J. - A defendant's personal knowledge of the victim's prior acts of
violence is relevant to the defendant's assertion of the necessity to act in self-defense.
Because the trial court precluded the defendant from testifying to an incident in his
personal knowledge, we reverse and remand for a new trial.
FACTS
Tracy Lee Johnson was charged with second degree assault arising from an
altercation with Gregory Mulhair. In 2008, Mr. Johnson reconnected with Michelle
Mulhair, a sweetheart from high school. She was married at that time to the victim,
Gregory Mulhair. The relationship progressed and in August 2010, Ms. Mulhair decided
to separate from her husband and move in with Mr. Johnson. No.30094-3-III State v. Johnson
Mr. Mulhair was at work most of the day that Ms. Mulhair was to move in with
Mr. Johnson. On his way home from work, Mr. Mulhair saw Mr. Johnson pulled over to
the side of the street. Mr. Mulhair decided to tum around and confront Mr. Johnson.
Mulhair got out of his truck and began to approach Johnson's truck. Mr. Johnson then
got out of his truck, armed with his son's aluminum baseball bat. It is not clear what
happened next, but it is undisputed that Mr. Johnson struck Mr. Mulhair with the bat
three times in rapid succession; Mr. Mulhair did not strike Mr. Johnson. Mr. Johnson
testified that he did not strike until Mr. Mulhair raised his arm at him as if to strike.
At trial, Mr. Johnson asserted self-defense. To prove the element of reasonable
fear in support of self-defense, Mr. Johnson was allowed to testify and cross-examine Mr.
Mulhair regarding several instances of verbal aggression by Mr. Mulhair against Mr.
Johnson.
Mr. Johnson also sought to testify to and elicit from Mr. Mulhair one instance of
physical aggression whereby Mr. Mulhair assaulted his wife in Mr. Johnson's presence.
The incident happened in late 2009 when Mr. Johnson and Ms. Mulhair secretly went out
to dinner. When the pair left the restaurant, Mr. Mulhair was in the parking lot waiting
for them, having followed his wife through a Global Positioning System tracking device
planted in the trunk of her car. Mr. Mulhair was alleged to have hit his wife in the
parking lot upon seeing her with Mr. Johnson.
No.30094-3-III State v. Johnson
Prior to Mr. Mulhair's testimony, the State brought a motion in limine to prevent
any mention of the assault by the victim against his wife. The court granted the motion
after finding that the evidence was not relevant to the claim of self-defense because the
victim of the prior assault was Mr. Mulhair's wife, not the defendant. The defense raised
the issue again prior to Mr. Johnson's testimony. The court precluded the defendant from
raising the incident in his testimony.
The trial concluded without any mention of the assault by Mr. Mulhair against his
wife. The case was argued to the jury on a theory of self-defense. The jury returned a
guilty verdict. Mr. Johnson then timely appealed to this court.
ANALYSIS
The sole issue that Mr. Johnson presents for review is the propriety of the trial
court's ruling on the State's motion to exclude evidence of Mr. Mulhair's assault against
his wife. The trial court did not err in prohibiting the cross-examination of Mr. Mulhair
until a proper foundation had been laid to make the incident admissible, but we agree
with Mr. Johnson that the court did err in precluding him from testifying about the
incident.
Evidentiary rulings typically are reviewed for abuse of discretion. State v. Guloy,
104 Wn.2d 412,429-30,705 P.2d 1182 (1985). "In close cases, the balance must be
tipped in favor of the defendant." State v. Wilson, 144 Wn. App. 166, 177, 181 PJd 887
(2008). Discretion is abused when it is exercised on untenable grounds or for untenable
No. 30094-3-111 State v. Johnson
reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
Discretion also is abused when a court uses an incorrect legal standard in making a
discretionary decision. State v. Rundquist, 79 Wn. App. 786, 793,905 P.2d 922 (1995).
However, an appellate court reviews evidentiary issues de novo when raised under the
framework of a denial of a defendant's Sixth Amendment right to present a defense.
State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010) (reviewing de novo a ruling
limiting the scope of the defendant's testimony).
In relevant part, self-defense requires proof that the defendant had a reasonable
fear of imminent danger of death or great bodily harm. RCW 9A.16.020(3); State v.
Callahan, 87 Wn. App. 925, 943 P.2d 676 (1997). The jury must assess the defendant's
claim of self-defense "from the standpoint of the reasonably prudent person, knowing all
the defendant knows and seeing all the defendant sees." State v. Janes, 121 Wn.2d 220,
238, 850 P.2d 495 (1993). Thus, when presenting evidence of the victim's previous
violent act, the defendant must show that he had actual knowledge of the specific acts at
the time the defendant allegedly acted in self-defense. State v. Moore, 182 Wash. 111,
115-16,45 P.2d 605 (1935); State v. Adamo, 120 Wash. 268, 269-71, 207 P. 7 (1922);
State v. Cloud, 7 Wn. App. 211, 217-18, 498 P.2d 907 (1972); State v. Huff, 3 Wn. App.
632,634,477 P.2d 22 (1970).
With these standards in mind, we turn to the court's rulings. Evidence of the prior
assault was excluded under ER 402 due to lack of relevance. 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. "The threshold to admit relevant evidence is very low. Even
minimally relevant evidence is admissible." State v. Darden, 145 Wn.2d 612,621,41
P.3d 1189 (2002). Thus, to be relevant the assault by Mr. Mulhair against his wife had to
in at least some minimal way make the existence of a fact relating to one of the elements
of self-defense more probable.
With respect to the attempt to cross-examine Mr. Mulhair about the prior incident,
the trial court correctly concluded that it was not relevant. Until Mr. Johnson had
testified that he acted in self-defense and demonstrated that the prior assault was one of
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FILED
DEC 17,2013
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
DNISION THREE
STATE OF WASHINGTON, ) ) No. 30094-3-111 Respondent, ) ) v. ) ) TRACY LEE JOHNSON, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, C.J. - A defendant's personal knowledge of the victim's prior acts of
violence is relevant to the defendant's assertion of the necessity to act in self-defense.
Because the trial court precluded the defendant from testifying to an incident in his
personal knowledge, we reverse and remand for a new trial.
FACTS
Tracy Lee Johnson was charged with second degree assault arising from an
altercation with Gregory Mulhair. In 2008, Mr. Johnson reconnected with Michelle
Mulhair, a sweetheart from high school. She was married at that time to the victim,
Gregory Mulhair. The relationship progressed and in August 2010, Ms. Mulhair decided
to separate from her husband and move in with Mr. Johnson. No.30094-3-III State v. Johnson
Mr. Mulhair was at work most of the day that Ms. Mulhair was to move in with
Mr. Johnson. On his way home from work, Mr. Mulhair saw Mr. Johnson pulled over to
the side of the street. Mr. Mulhair decided to tum around and confront Mr. Johnson.
Mulhair got out of his truck and began to approach Johnson's truck. Mr. Johnson then
got out of his truck, armed with his son's aluminum baseball bat. It is not clear what
happened next, but it is undisputed that Mr. Johnson struck Mr. Mulhair with the bat
three times in rapid succession; Mr. Mulhair did not strike Mr. Johnson. Mr. Johnson
testified that he did not strike until Mr. Mulhair raised his arm at him as if to strike.
At trial, Mr. Johnson asserted self-defense. To prove the element of reasonable
fear in support of self-defense, Mr. Johnson was allowed to testify and cross-examine Mr.
Mulhair regarding several instances of verbal aggression by Mr. Mulhair against Mr.
Johnson.
Mr. Johnson also sought to testify to and elicit from Mr. Mulhair one instance of
physical aggression whereby Mr. Mulhair assaulted his wife in Mr. Johnson's presence.
The incident happened in late 2009 when Mr. Johnson and Ms. Mulhair secretly went out
to dinner. When the pair left the restaurant, Mr. Mulhair was in the parking lot waiting
for them, having followed his wife through a Global Positioning System tracking device
planted in the trunk of her car. Mr. Mulhair was alleged to have hit his wife in the
parking lot upon seeing her with Mr. Johnson.
No.30094-3-III State v. Johnson
Prior to Mr. Mulhair's testimony, the State brought a motion in limine to prevent
any mention of the assault by the victim against his wife. The court granted the motion
after finding that the evidence was not relevant to the claim of self-defense because the
victim of the prior assault was Mr. Mulhair's wife, not the defendant. The defense raised
the issue again prior to Mr. Johnson's testimony. The court precluded the defendant from
raising the incident in his testimony.
The trial concluded without any mention of the assault by Mr. Mulhair against his
wife. The case was argued to the jury on a theory of self-defense. The jury returned a
guilty verdict. Mr. Johnson then timely appealed to this court.
ANALYSIS
The sole issue that Mr. Johnson presents for review is the propriety of the trial
court's ruling on the State's motion to exclude evidence of Mr. Mulhair's assault against
his wife. The trial court did not err in prohibiting the cross-examination of Mr. Mulhair
until a proper foundation had been laid to make the incident admissible, but we agree
with Mr. Johnson that the court did err in precluding him from testifying about the
incident.
Evidentiary rulings typically are reviewed for abuse of discretion. State v. Guloy,
104 Wn.2d 412,429-30,705 P.2d 1182 (1985). "In close cases, the balance must be
tipped in favor of the defendant." State v. Wilson, 144 Wn. App. 166, 177, 181 PJd 887
(2008). Discretion is abused when it is exercised on untenable grounds or for untenable
No. 30094-3-111 State v. Johnson
reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
Discretion also is abused when a court uses an incorrect legal standard in making a
discretionary decision. State v. Rundquist, 79 Wn. App. 786, 793,905 P.2d 922 (1995).
However, an appellate court reviews evidentiary issues de novo when raised under the
framework of a denial of a defendant's Sixth Amendment right to present a defense.
State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010) (reviewing de novo a ruling
limiting the scope of the defendant's testimony).
In relevant part, self-defense requires proof that the defendant had a reasonable
fear of imminent danger of death or great bodily harm. RCW 9A.16.020(3); State v.
Callahan, 87 Wn. App. 925, 943 P.2d 676 (1997). The jury must assess the defendant's
claim of self-defense "from the standpoint of the reasonably prudent person, knowing all
the defendant knows and seeing all the defendant sees." State v. Janes, 121 Wn.2d 220,
238, 850 P.2d 495 (1993). Thus, when presenting evidence of the victim's previous
violent act, the defendant must show that he had actual knowledge of the specific acts at
the time the defendant allegedly acted in self-defense. State v. Moore, 182 Wash. 111,
115-16,45 P.2d 605 (1935); State v. Adamo, 120 Wash. 268, 269-71, 207 P. 7 (1922);
State v. Cloud, 7 Wn. App. 211, 217-18, 498 P.2d 907 (1972); State v. Huff, 3 Wn. App.
632,634,477 P.2d 22 (1970).
With these standards in mind, we turn to the court's rulings. Evidence of the prior
assault was excluded under ER 402 due to lack of relevance. 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. "The threshold to admit relevant evidence is very low. Even
minimally relevant evidence is admissible." State v. Darden, 145 Wn.2d 612,621,41
P.3d 1189 (2002). Thus, to be relevant the assault by Mr. Mulhair against his wife had to
in at least some minimal way make the existence of a fact relating to one of the elements
of self-defense more probable.
With respect to the attempt to cross-examine Mr. Mulhair about the prior incident,
the trial court correctly concluded that it was not relevant. Until Mr. Johnson had
testified that he acted in self-defense and demonstrated that the prior assault was one of
the reasons he acted as he did, the prior assault was not relevant. Absent that foundation
there was no basis for believing the prior incident was of consequence to the case. The
court did not abuse its discretion in granting the State's motion with respect to Mr.
Mulhair's testimony during the prosecution's case. Mr. Johnson's remedy was to recall
Mr. Mulhair to the stand once the proper foundation had been established by Mr.
Johnson's own testimony.
A different question is presented by the order precluding Mr. Johnson from
testifying to the incident during the defense case. As noted, the victim's alleged violent
history is relevant when it is known to the defendant. The trial court excluded the
evidence on the basis that the prior assault had been directed toward Ms. Mulhair rather
than Mr. Johnson. However, our cases have concluded that a violent act directed against
another person is relevant to a self-defense claim when information about the prior
incident was known to the defendant. Moore, 182 Wash. at 115-16; Adamo, 120 Wash.
at 271; Cloud, 7 Wn. App. at 218. Even when known to the defendant, the evidence can
be excluded ifit is too remote in time. Adamo, 120 Wash. at 270; Cloud, 7 Wn. App. at
218-19.
The prior assault against Ms. Mulhair was not too remote to be irrelevant. It had
occurred recently and was related to the subject of the current hard feelings between the
two men-the break up of the Mulhair marriage and Ms. Mulhair taking up with Mr.
Johnson. It was highly relevant and should, therefore, have been admitted through the
testimony of Mr. Johnson.
The State does not distinguish the Adamo line of cases and instead directs this
court to State v. Hutchinson, 135 Wn.2d 863, 959 P.2d 1061 (1998). However,
Hutchinson is inapposite because it dealt solely with using the victim's prior acts to
identifY the first aggressor. Id. at 886-87. Hutchinson did not deal with using the
victim's prior acts against others to prove the reasonableness of the defendant's fear.
Although the trial court erred, this court will not reverse the conviction if it can be
shown that the error was harmless. Jones, 168 Wn.2d at 724-25. The State argues that
the other instances of aggressive acts by Mr. Mulhair gave Mr. Johnson sufficient
opportunity to present his claim of self-defense. While these acts allowed Mr. Johnson to
present a claim of self-defense, we cannot say that the exclusion of the assault by Mr.
Mulhair against his wife was harmless beyond a reasonable doubt. All of the acts
presented to the jury were acts of verbal aggression or nonverbal, nonphysical passive
aggression. The excluded act was the only act of physical aggression by Mr. Mulhair.
Mr. Johnson's knowledge of that act directly went to the reasonableness of his use of
force against Mr. Mulhair.
If the jury had known that force had already been used by Mr. Mulhair against his
wife over the break up of their relationship, it was more likely that the jury would have
found Mr. Johnson reasonably needed to use force to counter the expected use of force by
Mr. Mulhair. Because the excluded evidence was of greater value to Mr. Johnson than
the evidence actually presented to the jury, the error was not harmless.
We therefore reverse Mr. Johnson's conviction and remand the case for a new
trial.
A majority of the panel has determined 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.
Korsmo, C.J.
WE CONCUR:
5:~,(7