       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.




                                        12
