State v. Dobbs

320 P.3d 705, 180 Wash. 2d 1
Washington Supreme Court·Decided March 13, 2014·No. No. 87472-7·Published·Cited by 51 cases

Opinions

Owens, J.

¶1 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. 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).

¶2 In this case, Timothy John Dobbs engaged in a campaign of threats, harassment, and intimidation against [5] 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).

FACTS

¶3 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.

¶4 While the police officer was at her residence, C.R. received text messages and a phone call. She explained to [6] 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.

¶5 On November 10, 2009, C.R. called James Applebury, her cousin’s fiancé 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 Applebury 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.

¶6 Later that same evening, Applebury’s fiancée 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 [7] then fled, jumping over the fence into the neighbor’s yard. With the 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.

¶7 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, “ T told you ... you were going to find me dead.’ ” Id. at 116. She also gave the police a note that Dobbs had left behind earlier that day, which one of the police officers read into the record at trial:

“Last days. The countdown on your ... ass. You should know me by now [C.R.]. 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.”

Id. at 120.

¶8 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.” Id. at 123.

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State v. Dobbs, 320 P.3d 705, 180 Wash. 2d 1 (Wash. 2014).

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