FILE IN CLERKS OFFICE aJ1R!ME COURT, STATE OF WA3HlNGTON DATE MAR 1 3 2014
~~ IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) Respondent, ) No. 87472-7 ) v. ) EnBanc ) TIMOTHY JOHN DOBBS aka TIMOTHY ) JOHN ST. LOUIS, ) ) Petitioner. ) ~ ) ) In the Matter of the Personal Restraint of ) ) TIMOTHY J. DOBBS, ) ) Filed MAR 1 3 2014 Petitioner. ) )
OWENS, J. -- Under the Sixth Amendment to the United States Constitution,
criminal defendants have the right to confront the witnesses against them. However,
if the defendant intentionally causes the absence of a witness from trial, he or she
forfeits that right. As the esteemed Justice Tom Chambers wrote, "[W]e will not
allow [the defendant] to complain that he was unable to confront [the witness] when
[the defendant] bears responsibility for [the witness's] unavailability." State v. State v. Dobbs No. 87472-7
Mason, 160 Wn.2d 910, 925, 162 P.3d 396 (2007). Without such a forfeiture rule,
defendants would have "an intolerable incentive ... to bribe, intimidate, or even kill
witnesses against them." Giles v. California, 554 U.S. 353, 365, 128 S. Ct. 2678, 171
L. Ed. 2d 488 (2008).
In this case, Timothy John Dobbs engaged in a campaign of threats,
harassment, and intimidation against his ex-girlfriend, C.R., that included a drive-by
shooting at her home and warnings that she would "'get it"' for calling the police and
she would "regret it" if she pressed charges against him. 1 Verbatim Report of
Proceedings (VRP) at 97, 123. As C.R. reported the increasingly violent activities of
Dobbs against her, she explained to the police that she was terrified that she was going
to wind up dead. After Dobbs was arrested, he made yet another intimidating phone
call to C.R., threatening that if she went forward and pressed charges against him, she
would regret it. When C.R. failed to show up to testify at trial, the trial judge found
that there was clear, cogent, and convincing evidence that Dobbs was the cause of her
absence and thus had forfeited his confrontation right. We agree. While Dobbs has
the right to confront witnesses against him, he forfeited his right to confront C.R.
when he chose to threaten her with violence for cooperating with the legal system.
"To permit the defendant to profit from such conduct would be contrary to public
policy, common sense and the underlying purpose of the confrontation clause."
United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976).
2 State v. Dobbs No. 87472-7
FACTS
The criminal charges in this case arose out of an escalating series of violent and
threatening actions Dobbs took against C.R. shortly after the end of their relationship.
On November 7, 2009, police were dispatched to C.R.'s residence in response to a
domestic violence report shortly before 5:00 a.m. C.R. explained to the police officer
that Dobbs had been following her and threatening to shoot her if she would not let
him be her boyfriend anymore. C.R. indicated that Dobbs had just been at her
residence beating on her door, wanting to come in. After they argued and she told
him to leave, she heard a hissing noise outside and found that her tires had been
slashed.
While the police officer was at her residence, C.R. received text messages and a
phone call. She explained to the officer that they were from Dobbs, and she put the
call on speakerphone so the officer could hear. The caller argued with C.R. about
why she had called the police on him, reminded her that he had warned her about
calling the police, and ended the call by telling her that she was going to '"get it."' 1
VRP at 97. C.R. told the officer that she believed Dobbs would hurt her, based on the
earlier threats to shoot her and the fact that she knew he had a gun. She told the
officer that Dobbs had told her that he was going to come back and shoot her house
and everyone there.
3 State v. Dobbs No. 87472-7
On November 10, 2009, C.R. called James Applebury, her cousin's fiancee
who lived in a house on the same property as C.R. 's residence. She told him that
Dobbs was leaving and wanted to know if Apple bury could confirm that Dobbs was
gone. Applebury went to the window and saw a man resembling Dobbs in a car
similar to one that he had seen Dobbs in previously. Shortly thereafter, the car pulled
into the alley next to the property and Applebury heard gunshots from the alley.
Applebury called the police, as did C.R., who reported that Dobbs had been stalking
her and that he had recently been at her house. The officers who responded to the call
found C.R. extremely fearful and upset. She told them that if Dobbs was not found,
they were going to find her dead. The police later examined the outside of C.R. 's
residence and found recent bullet holes. Based on the trajectory of the bullet holes,
the police concluded that they came from the nearby alley. C.R. later played for
police a voice mail from Dobbs that she received after the shooting. The police
reported that the voice mail basically said, '"You heard that. That was me and that's
what I can do."' Id. at 123.
Later that same evening, Applebury's fiancee told him that Dobbs was back on
the property. Applebury called the police and while he was talking to the dispatcher,
C.R. ran into the house, screaming that Dobbs had a gun. Applebury looked across
the yard through the open door to C.R.' s residence and saw Dobbs inside holding a
gun. Dobbs then fled, jumping over the fence into the neighbor's yard. With the
4 State v. Dobbs No. 87472-7
assistance of a K-9 unit, police tracked Dobbs to a nearby Laundromat, where he was
arrested. The next morning, C.R. 's neighbor found a handgun in his yard and turned
it over to the police.
When the police spoke with C.R. shortly after Dobbs had fled from her home,
they reported that she was hysterical, upset, and fearful. She told them that Dobbs had
been harassing and stalking her for two weeks. She explained that earlier that
evening, he had pushed his way inside her residence and that he had a gun. She told
the police, '"I told you ... you were going to find me dead."' !d. at 116. She also
gave the police a note that Dobbs had left behind earlier that day that one of the police
officers read into the record at trial:
"Last days. The countdown on your ... ass. You should know me by now, Casey. You fucked up and tripped with ... the wrong brother. You will regret what ... you did and said to me. You never loved me. You never cared about me and now you will reap a world of trouble and pain. Number 1, you can apologize to me and talk with me face-to-face or Number 2, you know you can't and won't be (inaudible) here in Longview or Washington. I'm going all out on this with you. You're fucked up, bitch."
Jd. at 120.
The following day, the police spoke with C.R. again and she played a voice
mail that she had received from Dobbs from jail the night after he had been arrested.
The police described the voice mail as Dobbs "essentially pleading with her not to go
forward and not to press charges against him and it -- it kind of quickly turned into
kind of a threatening of don't do this to me or-- or you'll regret it." !d. at 123.
5 State v. Dobbs No. 87472-7
C.R. also showed the police two text messages that she received the day of the
shooting. The police photographed the messages and then read them aloud at trial.
The first one said, "'Next time it is you, bitch. On, Bloods."' !d. at 126. The second
one said, "'Bitch, you move and there will be hell to pay. Plus, my bro lives down
there and he's a known figure. You can't get away from me. I told you you're mines
(sic)."' !d. at 126-27.
Prosecutors charged Dobbs with eight crimes, including stalking, harassment,
and drive-by shooting. The bench trial began on January 25, 2010. C.R. was served
with a subpoena, and the night before trial, an officer went to C.R. 's house to remind
her to come to court the following morning to testify. The officer reported that C.R.
responded "'Okay'" and closed the door. !d. at 106. C.R. did not appear at trial the
next day. Prosecutors and police attempted to contact her over the next couple of days
but were unable to reach her. The judge eventually issued a formal warrant for C.R.' s
arrest but she was not located and never appeared at trial.
The State asked the court to rule that Dobbs could not raise the issue of his
confrontation rights because he had forfeited those rights by engaging in wrongdoing
with the intent to prevent C.R. from testifying. The court agreed, ruling:
Clear, cogent and convincing evidence. I'm satisfied that there is a sufficient basis that the defendant's conduct is the fact to why she is not here. There is testimony that she felt he was -- the defendant was following her. She knew he carried a weapon. Others had seen a black handgun. She had threatened to -- he had threatened to shoot her in the past, if she wouldn't let him be her boyfriend. She said she was
6 State v. Dobbs No. 87472-7
receiving text messages calling her names. There is evidence that -- I'm deciding this by clear, cogent and convincing evidence. I have not decided this case based upon beyond a reasonable doubt. So, that should be emphasized. There is the -- she believed it was the defendant that punctured her tires. She said she believed the defendant would-- he would hurt her because of what she had said in the -- because of what he had said in the past, she believed he would shoot her. He had a handgun. So, I think that based upon the evidence that is in front of this Court, it is clear, cogent and convincing that she was afraid of him and that's why she isn't here to testify. And, that based on that evidence, he does forfeit the right to object on the confrontation issues, not as to the basis for any hearsay.
2 VRP at 255-56.
The trial court then addressed whether the forfeiture of one's confrontation
rights also waives one's hearsay objections. The court ruled that under State v.
Fallentine, 149 Wn. App. 614, 215 P.3d 945 (2009), "there is also a waiver ofhearsay
objections if the Court finds forfeiture by wrongdoing." 2 VRP at 282.
The judge found Dobbs guilty of (1) stalking (domestic violence) with a deadly
weapon enhancement, (2) felony harassment (domestic violence), (3) intimidating a
witness (domestic violence), (4) drive-by shooting (domestic violence), (5) first
degree unlawful possession of a firearm, and (6) obstructing a law enforcement
officer.
Dobbs appealed and the Court of Appeals affirmed, holding that there was
sufficient evidence that Dobbs intentionally engaged in misconduct to keep C.R. from
testifying, including telling her she would die if she continued to cooperate with the
police and then later, after he was arrested, threatening that she would regret it if she
7 State v. Dobbs No. 87472-7
proceeded to press charges. State v. Dobbs, 167 Wn. App. 905, 914-15, 276 P.3d 324
(2012). The Court of Appeals also held that the trial judge did not err in admitting
evidence that would have been inadmissible as hearsay but for the doctrine of
forfeiture by wrongdoing. !d. at 917-18. The Court of Appeals concluded that under
the same reasoning underlying the forfeiture of wrongdoing, a defendant waives his
hearsay objections when his actions make it necessary for the State to rely on out-of-
court statements. !d. at 918. We granted Dobbs's subsequent petition for review.
State v. Dobbs, 175 Wn.2d 1013, 287 P.3d 10 (2012).
ISSUES
1. Did substantial evidence support the trial judge's ruling that Dobbs had
caused C.R.' s absence and thus forfeited his right to confront her?
2. If Dobbs forfeited his confrontation right by wrongdoing, did he also waive
any hearsay objections he might have?
STANDARD OF REVIEW
Constitutional issues, such as the potential violations of the Sixth Amendment
right to confront witnesses, are subject to de novo review. State v. Price, 158 Wn.2d
630, 638-39, 146 P.3d 1183 (2006). We review a trial court's findings of fact to
determine whether they are supported by substantial evidence. State v. Hill, 123
Wn.2d 641, 644-47, 870 P.2d 313 (1994). We review trial court decisions on the
admissibility of evidence for abuse of discretion. State v. Powell, 126 Wn.2d 244,
8 State v. Dobbs No. 87472-7
258, 893 P .2d 615 (1995). A trial court abuses its discretion when its decision "is
manifestly unreasonable or based upon untenable grounds or reasons." !d.
ANALYSIS
1. Substantial Evidence Supported the Trial Judge's Ruling That Dobbs Had Caused C.R. 's Absence and Thus Forfeited His Right to Confront Her
The Sixth Amendment gives criminal defendants the right to confront the
witnesses against them. 1 However, a criminal defendant forfeits this right when he or
she causes the witness to be unavailable. Mason, 160 Wn.2d at 925. This rule-
known as the forfeiture by wrongdoing doctrine-"permit[s] the introduction of
statements of a witness who was 'detained' or 'kept away' by the 'means or
procurement' of the defendant." Giles, 554 U.S. at 359.
In Washington, we first adopted the forfeiture by wrongdoing doctrine in
Mason. 160 Wn.2d at 925. We explained that the doctrine is grounded in the
principle of equity, and that a defendant cannot complain of his inability to confront a
witness when his own actions caused that witness to be unavailable. !d. at 925-26.
We held that when a trial court is faced with a potential forfeiture by wrongdoing,
"the trial court must decide whether the witness has been made unavailable by the
1 Article I, section 22 of the Washington State Constitution similarly provides a criminal defendant with the right "to meet witnesses against him face to face." Because the parties do not argue that the state constitution provides stronger confrontation rights than the federal constitution, we do not engage in that analysis. Mason, 160 Wn.2d at 917 n.l.
9 State v. Dobbs No. 87472-7
wrongdoing of the accused based upon evidence that is clear, cogent, and
convincing." !d. at 927.
In Mason, we also held that "[s]pecific intent to prevent testimony is
unnecessary" and that "[k]nowledge that the foreseeable consequences of one's
actions include a witness' unavailability at trial is adequate to conclude a forfeiture of
confrontation rights." !d. at 926. However, the United States Supreme Court later
explained that the forfeiture by wrongdoing doctrine is limited to those situations
where the defendant engaged in the conduct with the intention to prevent the witness
from testifying. Giles, 554 U.S. at 361.
Reading Mason and Giles together, we conclude that a defendant forfeits the
Sixth Amendment right to confront a witness when clear, cogent, and convincing
evidence shows that the witness has been made unavailable by the wrongdoing of the
defendant, and that the defendant engaged in the wrongful conduct with the intention
to prevent the witness from testifying.
When the standard ofproofis clear, cogent, and convincing evidence, the fact
at issue must be shown to be "highly probable." In re Welfare ofSego, 82 Wn.2d 736,
739, 513 P.2d 831 (1973). In this case, we hold that the State has established Dobbs's
pattern of abuse and intimidation towards C.R. and shown it is highly probable that
these violent threats-which Dobbs explicitly and directly connected to her decisions
to call the police and press charges-were the cause of her absence at trial. The trial
10 State v. Dobbs No. 87472-7
judge's finding of fact that there was clear, cogent, and convincing evidence that
Dobbs was the cause ofC.R.'s absence is supported by substantial evidence in the
record.
First, we review the evidence. We know that Dobbs had been stalking and
threatening C.R. with violence, including threats to shoot her. We know that C.R.
knew Dobbs had a gun and was terrified that he was going to kill her. She told police
that ifthey did not find Dobbs soon, they were going to find her dead. We know that
after Dobbs threatened to shoot her house and everyone in it, he partially followed
through on that threat by shooting at her residence, showing C.R. very clearly that he
was not making idle threats. We know that once C.R. chose to report Dobbs to the
police, Dobbs began harassing her about that decision and warned her that she was
going to "'get it."' 1 VRP at 97. We know that Dobbs left a note with C.R. telling
her that she would "'reap a world of trouble and pain.'" Id. at 120. We know that
C.R. received a text the day of the shooting that warned her that she would not be safe
even if she moved, telling her that "'my bro lives down there and he's a known
figure"' and "'[y]ou can't get away from me."' Id. at 126-27. And we know that after
he shot at C.R.' s house, he returned with a gun again and forced his way into her
residence. We know that C.R. was forced to run from her own home, screaming for
help. After Dobbs was finally apprehended that evening, we know that he called C.R.
from jail and left a voice mail pleading with her not to press charges. The police
11 State v. Dobbs No. 87472-7
officer who listened to the voice mail recalled that it "quickly turned into kind of a
threatening of don't do this to me or-- or you'll regret it." !d. at 123.
Taken together, these facts show that Dobbs was armed, consistently threatened
C.R. if she cooperated with the police, and followed through on these threats by
showing up at her house with a gun on multiple occasions, once even shooting at it.
Any rational individual would fear testifying against such a person. And indeed, C.R.
was terrified of Dobbs. She knew he carried a gun, and she knew his threats were
escalating. She told police over and over that she was scared that Dobbs was going to
kill her. And Dobbs specifically threatened her from jail, warning her not to press
charges. The only purpose such a threat could have would be to intimidate C.R. into
not participating in the criminal proceedings against Dobbs. The trial judge reviewed
the evidence and made a finding of fact that there was clear, cogent, and convincing
evidence that Dobbs's violence and intimidation aimed at C.R. was the cause of her
decision against testifying against him at trial. Based on our review of the record, we
find that his decision was supported by substantial evidence.
We recognize that because we did not formally adopt the forfeiture by
wrongdoing doctrine until2007, there is little precedent to guide trial courts. In this
case, the trial judge relied on Fallentine, a Court of Appeals case from 2009 and one
of the only Washington cases to address forfeiture due to witness intimidation. He
concluded that "this case ... has a stronger basis than I think the Falentine [sic]
12 State v. Dobbs No. 87472-7
decision." 2 VRP at 282. We agree that the evidence in this case is even stronger
than the evidence in Fallentine, where the Court of Appeals dismissed a confrontation
challenge.
In Fallentine, both Anthony Clark and Conrad Fallentine were charged in
connection with an arson and burglary. 149 Wn. App. at 618. Clark admitted
committing the arson with Fallentine and pleaded guilty, but he later refused to testify
against Fallentine. I d. The State then sought to introduce the testimony of a social
worker who met with Clark. She testified that Clark had told her that he was afraid of
Fallentine, that he knew Fallentine carried a firearm, and that he believed Fallentine or
his associates would retaliate against him for '"roll[ing] over' on Fallentine." Id. at
621-22 (alteration in original).
However, when the court held a hearing to determine why Clark refused to
testify, Clark recanted. Id. at 622. He denied that he was frightened and spoke
favorably ofFallentine, saying he was "'like a brother"' and "'didn't do the arson."'
Id. The social worker testified again to Fallentine's earlier statements of fear, and this
time testified that Clark had claimed that Fallentine threatened to "'put a hit"' out on
him if he testified. I d. at 622-23. There was no other evidence of any threat to Clark,
and the social worker also testified that Clark did not want to "'rat ... out"' Fallentine
and "did not want to be seen as a snitch inside the jail 'on top of everything else."' I d.
13 State v. Dobbs No. 87472-7
The Court of Appeals held that the evidence showed that Fallentine intentionally
prevented Clark from testifying. ld. at 623.
We find the evidence in this case to be even stronger. In contrast to Clark, who
directly denied that his fear ofFallentine was the reason he refused to testify, we have
no such disavowal from C.R., who remained silent. Also, unlike here, where Dobbs's
menacing conduct was directly observed by multiple witnesses and left a trail of text
messages, voice mails, and bullet holes, there was no independent evidence to verify
that Fallentine prevented Clark from testifying. The evidence supporting this
proposition consisted only of Clark's hearsay statements to the investigator and social
worker. Jd. at 618, 621-23. Even this was somewhat diluted by the fact that Clark
also told the social worker that he did not want to be seen as a snitch inside the jail,
suggesting a different motive for his changing story. Id. at 622-23. But despite
Clark's direct denial that his refusal to testify was caused by Fallentine and the
indications that Clark had other potential motives, the court saw through the charade
and held that there was clear, cogent, and convincing evidence that Clark's failure to
testify was caused by Fallentine. Id. at 616, 623.
Admittedly, in this case we do not have a direct statement from C.R. stating
that she feared Dobbs would kill her specifically as a result of her testifying. But that
is the nature of the forfeiture by wrongdoing doctrine, where witnesses are scared into
silence. We cannot and do not require a direct statement from the witness who is
14 State v. Dobbs No. 87472-7
intimidated into silence because such a requirement would exclude almost all absent
witnesses' testimony, regardless of evidence of witness intimidation. The only
situation in which such testimony would be admitted is where the witness comes
forward and identifies the defendant's actions as the reason for refusing to testify.
This would be an extreme and inappropriately high bar because, by definition, a
witness who was intimidated into silence will not come forward to say as much.
Here, we do have a police officer's testimony regarding the voice mail C.R.
received from Dobbs in jail where he warned that she should not press charges or she
would "regret it." 1 VRP at 123. The only purpose for such a threat was to intimidate
C.R. into not participating in the criminal proceedings against Dobbs. And it is highly
probable that this threat was successful. Just because C.R. did not spell out exactly
what type of cooperation with law enforcement she feared would cause Dobbs to
follow through on his death threats does not mean they did not have their intended
effect. C.R. repeatedly expressed terror of Dobbs and what he would do. She had
seen Dobbs follow through on his threats before when he fired bullets into her house,
and it is highly probable that she feared the consequences of testifying against him.
C.R. should not have to spell out for the court what is obvious to any rational
observer: she was afraid Dobbs would again follow through on his threats if she
testified, perhaps to a much more dangerous extent. Every one of Dobbs's threatening
text messages, voice mails, and uninvited appearances made it less rational for C.R. to
15 State v. Dobbs No. 87472-7
risk her life to testify and more likely that Dobbs would succeed in preventing her
from doing so. There is simply too much evidence here of Dobbs's violence to avoid
the conclusion that it is highly probable that he succeeded in his repeated efforts to
deter C.R. and keep her away from the stand.
Forfeiture by wrongdoing requires clear, cogent, and convincing evidence. It
does not require a showing beyond a reasonable doubt. A court does not need to rule
out all possibilities for a witness's absence; it needs only to find that it is highly
probable that the defendant intentionally caused it. Here, all of the evidence points to
that conclusion. The trial court entered a finding of fact that clear, cogent, and
convincing evidence showed that Dobbs caused C.R. 's absence from court. The court
then ruled that, as a result, Dobbs forfeited his right to confront C.R. We hold that the
trial court's finding of fact was supported by substantial evidence and the legal
standard was properly applied.
2. When Dobbs Forfeited His Confrontation Right by Wrongdoing, He Waived His Hearsay Objections
The trial court and the Court of Appeals held that when Dobbs forfeited his
confrontation rights by wrongdoing, he also waived his hearsay objections. We agree.
As the United State Supreme Court has observed, '" [I]t seems apparent that the Sixth
Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the
same roots." Giles, 554 U.S. at 365 (quoting Dutton v. Evans, 400 U.S. 74, 86, 91 S.
Ct. 210, 27 L. Ed. 2d 213 (1970)). Both are designed to protect against the dangers of
16 State v. Dobbs No. 87472-7
using out-of-court statements as proof. But when the defendant's actions are the
reason that the State must rely on out-of-court statements, he is hardly in a position to
complain about the use of those out-of-court statements, whether through an assertion
of confrontation rights or a hearsay objection. For the same reasoning that underlies
the forfeiture by wrongdoing doctrine, we hold that a defendant who procures a
witness's absence waives his hearsay objections to that witness's out-of-court
statements.
In Giles, the United States Supreme Court underwent a thorough review of the
history behind the forfeiture by wrongdoing doctrine. 554 U.S. at 358-69. The Court
found that "[n]o case or treatise that we have found ... suggested that a defendant
who committed wrongdoing forfeited his confrontation rights but not his hearsay
rights." !d. at 365. The Court went on to comment that "the distinction would have
been a surprising one, because courts prior to the founding excluded hearsay evidence
in large part because it was unconfronted." !d. The majority of courts have agreed
with the Supreme Court's conclusion. See United States v. White, 325 U.S. App. D.C.
282, 116 F.3d 903, 912 (1997). Indeed, when considering whether forfeiture of
confrontation rights also waives one's hearsay objections, we find it reasonable to
conclude that "[t]he same equity and policy considerations apply with even more
force to a rule of evidence without constitutional weight." !d. at 913. If such
wrongdoing did not result in a waiver of hearsay objections, a defendant would have a
17 State v. Dobbs No. 87472-7
perverse incentive to use threats, intimidation, or violence to prevent a witness from
coming to court. 2 Such an outcome defies common sense.
CONCLUSION
Those in the best position to protect the survivors of domestic violence are the
survivors themselves. We find that it is highly likely that C.R. chose to protect herself
by refusing to testify against Dobbs. By threatening C.R. with violence for
cooperating with the police and pressing charges, Dobbs attempted to prevent her
from testifying. We will not reward him for his success in bringing about that result.
We hold that he has forfeited his confrontation rights and hearsay objections through
his wrongdoing. We affirm the Court of Appeals.
2 We note that this rule, already adopted by the majority of the courts who have addressed it and adopted by this court in this opinion, has also recently been codified in Washington's Rules of Evidence effective September 1, 2013. See ER 804(b)(6) (including in the list of hearsay exceptions "[a] statement offered against a party that has engaged directly or indirectly in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.").
18 State v. Dobbs No. 87472-7
WE CONCUR:
19 State v. Dobbs (Timothy J.)
No. 87472-7
WIGGINS, J. (dissenting)-As part of Timothy John Dobbs's two-week
campaign of harassing and stalking C.R., Dobbs warned C.R. not to call the police.
Despite these threats, C.R. called the police after Dobbs pounded on her door and
slashed her tires.
Three days later, Dobbs apparently fired several shots into C.R.'s residence.
Despite Dobbs's threats not to call the police, C.R. again called the police. Later
that same evening, C.R. ran to her neighbor's house screaming that Dobbs was
present and had a gun. The neighbor called police and C.R. told the police about
Dobbs's threats and her fear that he would kill her.
The police apprehended and jailed Dobbs. The next night Dobbs called from
the jail and left a voice mail pleading with her not to go forward with charges and
threatening her if she proceeded. Despite Dobbs's threats, C.R. played the voice
message for the police and showed them two threatening text messages he had
sent a few days earlier.
There is no evidence of any other threats by Dobbs against C. R. for the next
two months, while Dobbs was confined in jail. Thus, before Dobbs was arrested and
jailed, C.R. repeatedly reported Dobbs's threats and attacks to police. Two months
later, without any further known threats by Dobbs and while Dobbs was still jailed,
C.R. failed to attend his trial. No. 87472-7 (Wiggins, J., dissenting)
I. The state did not provide clear, cogent, and convincing evidence that Dobbs caused C.R.'s absence at trial
The majority concludes that these facts clearly, cogently, and convincingly
prove that Dobbs's actions caused C.R.'s absence at trial. But the majority's
conclusion is mere speculation in light of the multiple plausible theories for C.R.'s
nonappearance. It is certainly possible that Dobbs's phone call and voice message
to C.R., along with his earlier acts of intimidation and harassment, dissuaded C.R.
from testifying. However, it is also quite possible that she had some other motive: if
the situation with Dobbs calmed after November 10, she may have decided she did
not want him to be convicted. She may also have been intimidated by the prospect
of appearing in court, or may have had a personal distaste for cooperating with law
enforcement once the original threat had dissipated. As early as November 17 she
was not showing up for appointments at the police station, and no evidence
suggested it was because she was afraid. We do not know what occurred in the
months between her sworn statement to police on November 10 and her absence
from trial on January 25 to change C.R.'s perspective (even assuming she ever
intended to testify); we can only speculate. Where the evidence supports multiple
inferences as to the cause of a witness's failure to appear, we cannot conclude that
the evidence of causation is clear, cogent, and convincing. See Wilkie v. Simonson,
51 Wn.2d 875, 877-78, 322 P.2d 870 (1958) (where evidence adduced sustains two
equally plausible theories, the party with the burden of proof has failed to meet its
burden).
2 No. 87472-7 (Wiggins, J., dissenting)
Indeed, to reach its conclusion, the majority overlooks the remarkable dearth
of evidence connecting Dobbs's actions to C.R.'s nonappearance. None of the
officers or civilian witnesses who were in contact with C.R. leading up to the trial
offered any evidence on whether C.R. had mentioned a plan not to appear, or
offered any reasons why C.R. might not appear. Officers contacted C.R. several
times after the incident on November 10. And notably, Officer Michael Headley
spoke with her the night before the start of trial, and C.R. assured Headley that she
would be at trial. Civilian witnesses James Applebury and Sarah Ellis lived next to
C.R. throughout this period. 1 They both offered testimony to support the charges,
but neither offered any evidence to explain why C.R. declined to appear.
The majority's conclusion is not only speculative, it is counterintuitive.
Dobbs's threats did not prevent C.R. from contacting police before he was arrested
and jailed. The majority concludes somewhat implausibly that once behind bars,
Dobbs somehow instilled such a fear in C.R. so as to prevent her from testifying at
the very trial that would ensure her continued safety by placing Dobbs behind bars
for a considerable period of time.
Under the majority's analysis, every defendant who threatens a witness not to
contact police or to testify automatically forfeits the right to cross-examine the
witness. The majority authorizes a court to admit the witness's prior statements
about the crime without any evidentiary support that the threats caused the witness'
absence. Indeed, that is what happened here. The State presented evidence of
threats, which had never before prevented C.R. from contacting the police and
1 James Applebury is C.R.'s landlord and Sarah Ellis is C.R.'s neighbor.
3 No. 87472-7 (Wiggins, J., dissenting)
accusing Dobbs; the trial court concluded that the threats caused C.R.'s absence
from trial; and the majority affirms without requiring evidence that Dobbs's threats
caused the absence. The majority's reasoning is summarized by its assertion,
"While Dobbs has the right to confront witnesses against him, he forfeited his right to
confront C.R. when he chose to threaten her with violence for cooperating with the
legal system." Majority at 2 (emphasis added). Although the majority later
acknowledges that the doctrine of forfeiture by wrongdoing requires proof that the
defendant "causes the witness to be unavailable," id. at 9, the majority fails to find
that proof in this case.
The clear, cogent, and convincing standard of evidence is deliberately difficult:
it does not permit courts to assume a link between a defendant's wrongful behavior
and a witness's absence where there may be none. To allow such a weak showing
to become Washington's standard for "clear, cogent, and convincing" would swallow
the rule of confrontation. Indeed, it is difficult to imagine a domestic violence case
that would not involve threats or action designed to cause fear in the recipient.
Accordingly, the State should at least be required to produce more evidence than
was presented here.
Not only does the majority fail to find proof of causation, it finds little support in
the leading cases, State v. Mason, 160 Wn.2d 910, 162 P.3d 396 (2007), and Giles
v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008). In both
Mason and Giles, the evidence unequivocally established that the defendant
prevented the witness from testifying-in both cases the defendant silenced the
witnesses by murder. Even in the face of such clarity, we noted that "'a defendant's
4 No. 87472-7 (Wiggins, J., dissenting)
loss of the valued Sixth Amendment confrontation right constitutes a substantial
deprivation."' Mason, 160 Wn.2d at 926 (quoting People v. Geraci, 85 N.Y.2d 359,
367, 649 N.E.2d 817, 625 N.Y.S.2d 469 (1995)). This loss is a danger we refused to
take lightly: although the defendant may find other avenues to challenge an
incriminating statement's veracity, the Sixth Amendment enshrines the proposition
that none approaches the effectiveness of cross-examination. See Crawford v. Washington, 541 U.S. 36, 61-62, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ("The
[Confrontation] Clause thus reflects a judgment ... about how reliability can best be
determined.").
These cases additionally demonstrate that we are concerned about a
bootstrapping phenomenon peculiar to this context sometimes called "reflexive
forfeiture." Establishing forfeiture by wrongdoing requires a preliminary finding of fact
that the defendant's wrongful conduct prevented the witness's testimony. Mason,
160 Wn.2d at 926. This, by itself, is not unusual: evidentiary questions frequently
require a judge to make crucial pretrial findings pursuant to ER 104. /d. However,
"the issue of forfeiture by wrongdoing is unique in that the trial judge must often rule
on the ultimate question: [e.g.,] did the accused kill the alleged victim?" /d.
(emphasis added). Indeed, that was the case here because the trial judge had to
determine whether Dobbs had committed stalking, felony harassment, and
intimidating a witness to decide whether those same acts had procured C.R.'s
absence. In this way, establishing forfeiture sometimes requires presupposition of
the very guilt the defendant sought to challenge through confrontation, thus
ensnaring him or her in a circular trap. Any time a set of unconfronted, extrajudicial
5 No. 87472-7 (Wiggins, J., dissenting)
statements tend both to incriminate the defendant and establish grounds for
forfeiture, that defendant could lose any opportunity to challenge their accuracy and
truthfulness through cross-examination.
To guard against these dangers, we held that to establish forfeiture, the
prosecution must provide clear, cogent, and convincing evidence that the defendant
intended to prevent the witness from testifying, and that the defendant's wrongful
conduct actually caused the witness's nonappearance. /d. at 926-27. While
acknowledging that conventional pretrial decisions are typically made on a
preponderance of the evidence, we concluded that in this context, "the stakes are
simply too high to be left to a mere preponderance standard." /d. 2
In short, our case law makes clear that "the right of confrontation should not
be easily deemed forfeited by an accused." /d. at 927. When we articulate the "clear,
cogent, and convincing" standard, this court is commenting on the degree of
confidence the trier of fact should have in the correctness of its factual conclusions,
rather than requiring a certain level of statistical probability. In re Oet. of Brooks, 145
Wn.2d 275, 297, 36 P.3d 1034 (2001 ), overruled on other grounds by In re Oet. of
Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). This formulation properly reflects the
fact that probability with respect to the standard of proof is a measure of the
subjective belief of the trier of fact. We require a high degree of confidence under
2 Although Washington's use of the clear, cogent, and convincing standard is more exacting than the preponderance of evidence required by a majority of jurisdictions, see Mason, 160 Wn.2d at 926-27, this formulation of the forfeiture inquiry is not unique. The United States Court of Appeals for the Fourth Circuit, for instance, permits forfeiture of the confrontation right only where '"(1) the defendant engaged or acquiesced in wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable as a witness."' United States v. Dinkins, 691 F.3d 358, 383 (4th Cir. 2012) (quoting United State v. Gray, 405 F.3d 227, 241 (4th Cir. 2005)).
6 No. 87472-7 (Wiggins, J., dissenting)
the "clear, cogent, and convincing" standard, which falls just short of "beyond a
reasonable doubt," the category reflecting the highest degree of certainty. While the
evidence in this case is sufficient to prove by a preponderance of the evidence that
Dobbs caused C.R.'s failure to appear, it fails to rise to the required level of clear,
cogent, and convincing evidence.
Nor does the majority derive support from State v. Fa!lentine, 149 Wn. App.
614, 618, 215 P.3d 945 (2009), in which witness Anthony Clark made statements to
an investigator implicating the defendant, Fallentine, in an arson. Clark and
Fallentine were both charged with the arson. Clark later pleaded guilty, but refused
to testify against Fallentine at trial, despite being ordered by the trial judge to testify.
Clark, who was apparently a juvenile, explained to his social worker that he did not
want to '"have to look over [his] shoulder all the time"' and that Fallentine had
threatened to '"put a hit"' on him if he testified. /d. at 622-23. Moreover, there was
evidence that Clark had low self-esteem; was a '"follower"'; did not want to return to
foster care under any circumstances; and was motivated to have an ongoing
relationship with his sister and Fallentine, even though he was afraid of Fallentine.
/d. at 621. After Clark's first interview with the arson investigator, the social worker
said Clark told her that Fallentine carried a firearm and was dangerous, Clark felt he
could not get away from Fallentine, and he was worried what would happen if
Fallentine found him. After Clark's second recorded interview with the investigator,
he appeared "'frightened, hypervigilant and somewhat paranoid."' /d. at 621-22. The
social worker found Clark on the floor in a fetal position, sobbing. /d. On this basis,
the court was persuaded that Fallentine's threats were the reason Clark refused to
7 No. 87472-7 (Wiggins, J., dissenting)
appear in court. /d. at 623. The court of appeals affirmed, reasoning, "Viewed in the
light most favorable to the State, the evidence shows Fallentine told Clark if Clark
testified against him, he would be killed, and that threat actually prevented Clark
from testifying." /d. (footnote omitted).
Contrary to the majority, I would find that the evidence that Fallentine's threats
caused Clark not to testify was much stronger than the evidence that Dobbs's
threats caused C.R. not to testify. Here, the State adduced no direct evidence of
causation and offered only circumstantial evidence. The circumstantial evidence
showed a pattern of abuse giving rise to general fear but failed to connect that fear
to C.R.'s decision not to testify. We simply do not know why C.R. failed to appear,
and to conclude otherwise on these facts would permit a virtual presumption of
forfeiture any time a witness fails to appear after a defendant's threatening or violent
behavior.
The majority rightly sympathizes with the injustice inherent in domestic
violence situations and rightly seeks to protect C.R. and others from Dobbs.
Intimate partner abuse is endemic in this State: nearly one in five women
experience injury from their partner and almost one-half of all female homicide
victims perish at the hands of their current or former partner. LILLIAN BENSELY, WASH.
STATE DEP'T OF HEALTH, HEALTH OF WASHINGTON: DOMESTIC VIOLENCE (2004)
(updated 2013). These issues must be taken seriously. However, we cannot allow a
difficult case to vitiate this court's role as the guardian guarantor of constitutional
protections. The majority eviscerates the constitutional rights of many in order to
punish one, building bad law on bad facts.
8 No. 87472-7 (Wiggins, J., dissenting)
II. The erroneous admission of C.R.'s unconfronted testimony was not harmless beyond a reasonable doubt.
Because I would find a violation of the confrontation clause, I analyze whether
the conviction should be reversed due to the error, or whether the error was
harmless, in which case the conviction may stand.
A violation of the confrontation clause at trial is harmless only if the State can
show '"beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained."' State v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012)
(quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967)). By contrast, if the conviction is nonetheless supported by "'overwhelming
untainted evidence,"' we deem the confrontation clause error harmless. Mason, 160
Wn.2d at 927 (quoting State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005)).
Here, I would find that the trial court's admission of C.R.'s statements was not
harmless beyond a reasonable doubt with respect to Dobbs's convictions for
stalking, felony harassment, or intimidating a witness. Each of these convictions was
heavily supported by C.R.'s unconfronted testimony. In both of her sworn written
statements to police, C.R. complained that Dobbs had been making death threats
and harassing her for two weeks. This evidence would carry substantial weight with
a trier of fact supporting the charges of stalking and felony harassment. And C.R.
identified a threatening voice mail from a man she identified as Dobbs urging her not
to testify-evidence supporting the intimidating a witness charge. Witness James
Applebury's untainted testimony may have helped corroborate some of these
9 No. 87472-7 (Wiggins, J., dissenting)
statements from C.R. but falls short of providing overwhelming independent support
for these three convictions.
Dobbs's conviction for drive-by shooting presents a closer question, but here
too I am unable to conclude, beyond a reasonable doubt, that C.R.'s statements did
not at least contribute to the verdict. Applebury's testimony might, by itself, have
been sufficient to establish the conviction. Applebury testified that he saw a car he
recognized as Dobbs's pull into the alley and then heard and saw gunshots coming
from the alley. This occurred, according to Applebury, almost immediately after he
saw someone he believed was Dobbs leaving the vicinity of C.R.'s apartment. And a
trajectory analysis of two nearby bullet holes corroborated his account. However,
C.R.'s sworn statement from November 10 identified Dobbs as the shooter even
more unambiguously: "he got angry & shot 2x at my garage where there is [sic] 2
bullet holes .... " Pl.'s Ex. 37. And her earlier sworn statement on November 7
relayed his previous threats to shoot her. I cannot conclude, beyond a reasonable
doubt, that the trier of fact would have found Dobbs guilty of drive-by shooting in the
absence of C.R.'s unconfronted statements.
By contrast, the admission of C.R.'s statements was harmless beyond a
reasonable doubt with respect to Dobbs's convictions for unlawful possession of a
firearm and obstruction of a law enforcement officer. The conviction for unlawful
possession of a firearm required the State to prove both that Dobbs had a previous
conviction for a serious offense and that he was subsequently in possession of a
firearm. See RCW 9.41.040(1 )(a). Dobbs has such a previous conviction (attempted
robbery in the first degree), and Applebury testified that he directly observed Dobbs
10 No. 87472-7 (Wiggins, J., dissenting)
with a handgun on the evening of November 10. Finally, Dobbs's conviction for
obstructing a law enforcement officer is not based on C.R.'s statements at all, but
rather on Officer Nicholas Woodard's account that Dobbs fled after being ordered to
halt.
When evidence admitted at trial is later found to violate the confrontation
clause, remand for retrial is the appropriate remedy. Jasper, 174 Wn.2d at 120.
Therefore, because C.R.'s unconfronted statements may have contributed to them,
Dobbs's convictions for stalking, felony harassment, intimidating a witness, and
drive-by shooting should be reversed and retried.
To conclude, a defendant's Sixth Amendment confrontation right is forfeited
only upon clear, cogent, and convincing evidence that (1) the defendant acted with
specific intent to procure the witness's absence and (2) the defendant's wrongful
conduct is the actual cause of that witness's absence. I would hold that Dobbs did
not forfeit his right to confront C.R. C.R.'s unconfronted, extrajudicial statements to
police were therefore admitted in violation of Dobbs's Sixth Amendment rights. This
error was of a constitutional dimension, and I cannot conclude that it was harmless
beyond a reasonable doubt. Thus, I would reverse the Court of Appeals and
remand for retrial on the charges of stalking, felony harassment, intimidating a
witness, and drive-by shooting.
11 No. 87472-7 (Wiggins, J., dissenting)
I dissent.