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                                                                                                   2015 FE8 18             9: 19
      IN THE COURT OF APPEALS OF THE STATE OF W                                                                 ON
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                                                       DIVISION II                                  ilk
                                                                                                   By
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                                                                                                                          GTON


    STATE OF WASHINGTON,                                                                 No. 44633 -2 -II


                                            Respondent,


            v.



    JOSEPH ANDREW LESTER,                                                       UNPUBLISHED OPINION


                                            Appellant.




            SUTTON, J. —        Joseph Andrew Lester appeals his jury conviction for second degree murder.

He   argues      that ( 1) the trial   court violated   his Sixth Amendment right to         confront witnesses, ( 2)     the


trial court abused its discretion by admitting hearsay evidence under the penal interest exception,

and ( 3) his counsel was ineffective by failing to propose a jury instruction that placed the burden

on   the State to      disprove his diminished capacity defense. We hold that ( 1) the trial court did not


violate Lester' s Sixth Amendment right; (2) the trial court erred in admitting the entirety of one of

Keisha Lewis' s statements and not redacting the self -serving portion of that statement, but the

error was harmless; and ( 3) Lester' s trial counsel was not ineffective. We affirm.

                                                              FACTS


                                       I. OCTOBER 9 AND OCTOBER 31 STABBINGS


            Lester and Lewis began a romantic relationship in early 2010. Their daughter was born in
                          1
December 2010.                On October 31, 2011, Lester stabbed and killed Lewis, who was 10 weeks


pregnant.




1
    Lewis   also    had   a   two -year   -old son   from   a previous   relationship.
No. 44633 -2 -II



       On October 9,          about   three weeks before she           died, Lewis    stabbed     Lester'   s   leg.   Police


photographs of the scene showed blood throughout the apartment and officers believed that the


apartment    had been "   staged."     7 Verbatim Report         of   Proceedings ( VRP)     at   519. Both Lester and


Lewis lied to investigating officers about who stabbed Lester, telling the officers that a fictional

person named Marcus had done the stabbing. The police suspected that Lewis had stabbed Lester

but, because Lester did not wish to pursue charges, they did not investigate the incident further.

The day following the first stabbing incident, Lewis talked to her friend, Latasha Taylor. Taylor

testified at trial that she had asked Lewis if Lester would be alright and then continued:


           TAYLOR:]       I   asked   her   where   he   got stabbed, and she was         like in his   leg.    And
       then I was, like, why did you do it, and she told me why she did it.
           STATE:] Did she tell you that the two of them got into a physical altercation?
           TAYLOR:] Yes.
           STATE:] Did she describe how she stabbed him?
           TAYLOR:]       She just said that he was choking her, and she grabbed the knife, and
       she stabbed him to get him off of her.


5 VRP at 221.


       After the first stabbing incident, Sandra Barnes, Lewis' s mother,2 told Lester to move out

of Barnes' s home where Lester had been living with Lewis, their daughter, and Lewis' s two -year-

old son.    Three days before Lewis' s death, Lester, Lewis, and the two children moved out of


Barnes' s home. The day after the move, Lewis asked Barnes if she could " come home" because

she was afraid that   Lester     was "      going to hurt her."       5 VRP   at   185.   Barnes allowed Lewis and


Lewis' s son to move back into her home.




2 Barnes is Lewis' s aunt but raised Lewis since she was 22 day old so we refer to Barnes as Lewis' s
mother. We intend no disrespect.



                                                             2
No. 44633 -2 -II



           On October 31, Lester came to Barnes' s home with his and Lewis' s daughter. Taylor was


visiting Lewis    at   Barnes'   s   home that      day.   Lester and Lewis walked outside together and Lester


brought their daughter          with   him.    Neither Taylor nor Barnes saw Lewis carry a knife outside.

About five     minutes    later, Lewis began screaming, " He'               s   killing   me!"   and ran inside where she


died quickly thereafter.         5 VRP at 199. A neighbor standing across the street heard Lewis' s cries

and met     Lester'   s gaze;   Lester   said, "   I' m just   doing   to her   what she was     doing   to   me."   5 VRP at


275 -76.    The neighbor testified that Lester appeared calm and not panicked while the neighbor


watched Lester place his daughter in the backseat of the car.


           Lewis sustained nine injuries and stabbings. Two of those stabbings could have been fatal


by themselves. Some of Lewis' s injuries could have been caused by defending herself. Although

Lester recalled wrestling for the knife on the ground, he acknowledged that the clothing he wore

that day lacked stains or blood on them, and that he did not have scratches, stab wounds, or

incisions on his body.

           The State charged Lester with two counts of murder, first and second degree, and alleged


a deadly weapon enhancement and three aggravators due to Lewis' s pregnancy, domestic violence,

and the crime occurring within the presence of a minor child.

                                                           II. TRIAL


           At trial, the State       moved    to   admit   two statements previously             made   by    Lewis: ( 1) her


statement to Taylor that she stabbed Lester on October 9 because Lester was choking her; and ( 2)

her statement to Barnes, a few days prior to her death, that she was afraid of Lester. Lester objected


based on his Sixth Amendment3 right to confront witnesses, although he conceded that Lewis' s




3 U.S. CoNST. amend. VI


                                                                 3
No. 44633 -2 -II



statement to Taylor was not testimonial. The trial court conducted a balancing test and determined

that the statements would benefit both parties and admitted the statements under ER 404( b) and


804(b)( 3). 4 Lester did not request a limiting instruction.

          Lester claimed he acted reasonably in self -defense in light of the first stabbing incident by

Lewis.      He also claimed to have diminished capacity as a result of post -traumatic stress disorder

 PTSD),     which meant he was unable to act with intent to murder Lewis when he stabbed her. The

defense expert psychologist, Dr. Vincent Gollogly, testified that Lester suffered from PTSD, which

explained why he experienced a blackout during the stabbing incident and could not remember

what had happened except for a flashback where he recalled wrestling on the ground for a knife.

Gollogly opined that Lester did not intentionally stab Lewis when he reacted under panic as Lewis

rushed at     him    with a    knife. The State' s rebuttal expert testified that Lester did not suffer from


PTSD and he had the capacity to form the mental state of intent.

           Lester' s counsel proposed and the trial court agreed to instruct the jury on diminished

capacity     as   follows: "   Evidence of mental illness or disorder may be taken into consideration in

determining whether the defendant had the capacity to formulate premeditation or specific intent

to kill."    Clerk'   s   Papers ( CP)   at   309, 363.   Lester' s proposed instruction cited 11 Washington


Pattern Instruction: Criminal (WPIC) 18. 20.


           The jury found Lester guilty of second degree murder.5 Lester appeals.



4
    To   admit evidence under       ER 404( b), the trial court must conduct a balancing test by weighing
the evidence' s      probative value against    its prejudicial effect. In re Det. of Coe, 175 Wn.2d 482,
493, 286 P. 3d 29 ( 2012).         Lester does not challenge the trial court' s ER 404( b) ruling.

5 The jury also returned special verdicts finding the deadly weapon enhancement and the
aggravating factors.

                                                            4
No. 44633 -2 -II



                                                      ANALYSIS


                                            I. CONFRONTATION CLAUSE


         Lester argues that the trial court violated his Sixth Amendment right to confront witnesses


by admitting Lewis' s statements to Barnes that she was afraid of Lester and to Taylor that she

stabbed Lester because he was choking her. We disagree. Because neither of Lewis' s statements

to her mother and her friend were testimonial, we hold that Lester' s Sixth Amendment right was


not violated.




                                              A. Standard of Review


         The Sixth Amendment' s confrontation clause guarantees a criminal defendant' s right to


 be   confronted with   the witnesses against him."        U.S. CONST. amend. VI. We review confrontation


clause rulings   de   novo.    State   v.   Koslowski, 166 Wn.2d 409, 417, 209 P. 3d 479 ( 2009).             The


confrontation clause     applies   only to testimonial           statements   or materials.   State v. Beadle, 173


Wn.2d 97, 112, 265 P. 3d 863 ( 2011).         Admission of hearsay statements by an unavailable declarant

may violate that right ifthe statements are testimonial and the defendant has not had an opportunity

to   cross -examine   the declarant.    State   v.   Shafer, 156 Wn.2d 381, 388, 128 P. 3d 87 ( 2006),        cert.




denied, 549     U. S. 1019 (   2006).       The State bears the burden of proving that a statement is

nontestimonial. Koslowski, 166 Wn.2d at 417 n.3.


         When a declarant makes a statement to a nongovernmental witness, we use the declarant -

centric standard   to   analyze whether       the    statement   is testimonial. Shafer, 156 Wn.2d at 390 n. 8.


That standard asks if a reasonable person would believe that the State would use the statement


against the defendant in prosecuting the alleged crime. Shafer, 156 Wn.2d at 390 n. 8. This inquiry




                                                            5
No. 44633 -241



 focuses on the declarant' s intent by evaluating the specific circumstances in which the out -of-

court statement was made."          Shafer, 156 Wn.2d at 390 n. 8.


                 B. The Trial Court Did Not Violate Lester' s Sixth Amendment Right


        Lewis made the statements at issue to her mother and her friend, both nongovernmental


witnesses. The record contains no evidence that Lewis believed that her statements to Barnes and


Taylor would be used to prosecute Lester. Lewis called Barnes for permission to move back home.


Lewis' s conversation with Taylor about the first stabbing incident occurred in the context of a

friend asking    what    had happened to Lester to           cause    his injuries. A reasonable person in Lewis' s


position would not believe that either of those statements would be used to prosecute Lester.

                                                                                                         6
Further, trial   counsel conceded      that the        statement   to Taylor   was not   testimonial .       Accordingly, we

hold that the trial court did not violate Lester' s Sixth Amendment right.

        II. ADMISSION OF HEARSAY EVIDENCE AS A STATEMENT AGAINST PENAL INTEREST.


        Lester also argues that the trial court erred by admitting Lewis' s statement to Taylor that

she   stabbed    Lester on October 9 because he               was    choking her.        We     agree.    Although Lewis' s


statement that she stabbed Lester was admissible under ER 803( b)( 3) as contrary to Lewis' s penal

interest, the reason she stabbed him was not against her penal interest and that portion of Lewis' s


statement should have been excluded.




6 And Lester' s argument that the State' s use of these statements " without limitation" converted
them   into testimonial     statements     is   also   incorrect: Br. of Appellant       at   11.   The trial court evaluated
this evidence under ER 404( b) and conducted a proper balancing of the probative value against the
undue prejudice. Lester did not request a limiting instruction. Both sides used these statements to
fit their   respective   trial theories.
No. 44633- 2- 11



                                                         A. Legal Principles


             We   review    evidentiary        rulings   for   abuse of    discretion. State v. Garcia, 179 Wn.2d 828,


846, 318 P. 3d 266 ( 2014).                   A trial court abuses its discretion if the ruling was manifestly

unreasonable or          based    upon untenable grounds or reasons.               Garcia, 179 Wn.2d at 846.


             Hearsay evidence of an unavailable declarant is admissible if the statement was so

contradictory to the declarant' s penal interest or subjected the declarant to criminal liability that

no reasonable person in the declarant' s position would have made the statement unless he or she

believed it to be true.            ER 804( b)( 3).       A statement that is against a person' s penal interest is one


that " in a     real and   tangible way [ subjects the declarant] to             criminal       liability."   State v. Gee, 52 Wn.


App.     357, 362, 760 P. 2d 361 ( 1988).              A statement is sufficiently contrary to penal interest if, even

though it is      not a " clear and unequivocal admission of criminal conduct,"                         it would have probative


value in prosecuting the declarant. State v. Parris, 98 Wn.2d 140, 149, 654 P. 2d 77 ( 1982).

              If a statement contains both self -serving and inculpatory portions, it is error to admit the

entire       statement.    State   v.   Roberts, 142 Wn.2d 471, 493 -94, 14 P. 3d 713 ( 2000).                       Our Supreme

                                                                                            8
Court in Roberts          endorsed      the   rule   in Williamson    v.   United States,       directing trial courts to separate

the self -serving portions of a statement against penal interest from the inculpatory portions and to

admit        only the   inculpatory     portions under         ER 804( b)( 3).   Roberts, 142 Wn.2d at 494, 498 -99.




7
    In   a    criminal    case,   the trial court must also              find that " corroborating circumstances clearly
indicate" that the         statement     is trustworthy before it           admits the evidence. ER 804( b)( 3). Because

we hold that the trial court abused its discretion by not excluding the self serving
                                                                             -       portion of
Lewis' s statement to Taylor, we do not address Lester' s argument that the trial court abused its
discretion because it did not analyze the statement' s trustworthiness.


8 Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 ( 1994).


                                                                     7
No. 44633 -2 -II



                 B. The Trial Court Erred By Admitting Lewis' s Entire Statement To Taylor

              Here, Lewis' s statement to Taylor contained both inculpatory and self -serving portions. In

her conversation with Taylor, Lewis admitted that she stabbed Lester and that she lied to the


investigating officer, both of which could have subjected her to potential criminal charges.

However, Lewis' s statement that she stabbed Lester to make him stop choking her was self-

serving.


              We hold that the trial court admitted Lewis' s statement on untenable grounds because it


did not follow Roberts. The trial court should have admitted only the portion of Lewis' s statement

that inculpated her for committing a crime, her admission that she stabbed Lester, and excluded

the self -serving portion, that she stabbed Lester,because he was choking her. The trial court abused

its discretion by admitting all of Lewis' s statement to Taylor.

                                                     C. Harmless Error


              Although the trial court erred in admitting Lewis' s entire statement to Taylor, the error was

harmless.         Erroneous admission of evidence is reviewed for non -constitutional harmless error.

State    v.   Gunderson,         Wn.2d ,           337 P. 3d 1090, 1095 ( 2014). An error is harmless if, within


reasonable probabilities, it did not materially affect the trial outcome had the error not occurred.

Gunderson, 337 P. 3d at 1095.


              Here, Lewis'   s statement was not, as        Lester   argues, "    in large measure the whole of the


State'   s argument" against      his   self defense
                                             -       claim.       Br.    of   Appellant   at   13.   The record contains an


abundance of
                     testimony   that the   jury   could   have   used   to   convict   Lester.      Lester admits that only

he and the victim were present when she was stabbed. Not long after Lester and Lewis walked




                                                              8
No. 44633 -2 -I1



outside,     both Barnes       and    Taylor heard Lewis   scream "   He'   s   killing   me! ".   5 VRP at 199, 253.


Neither Barnes nor Taylor saw Lewis walk outside with a knife.


          After Lester stabbed Lewis, Lester told a neighbor that he was " doing to her what she was

doing   to   me."        5 VRP   at   275 -76. But Lester appeared calm and not panicked while he spoke to


the   neighbor and situated           his daughter in the backseat   of   his   car.   Lester acknowledged that the


clothing he wore at the time of the stabbing did not have any stains or blood on them and he did

not have scratches, stab wounds, or incisions on his body. Lester stabbed Lewis seven times. Two

of those injuries could have been fatal by themselves, and two of Lewis' s injuries could have been

sustained by defending herself.

          Lester never requested an instruction to limit the State' s use of Lewis' s statement to Taylor


and during his closing argument, Lester used the fact that Lewis stabbed him to support his claim

that he   acted     in   self defense.
                              -           Even if the trial court erred in admitting the self serving
                                                                                              -       portion of

Lewis' s statement to Taylor, we conclude that there is not a reasonable probability that the outcome

of the trial would have been different.


                                        III. EFFECTIVE ASSISTANCE OF COUNSEL


          Lester argues that his counsel was ineffective for failing to propose a jury instruction that

placed    the   burden      of proof on    the State to disprove Lester' s      diminished capacity defense.           The


State argues that Lester' s counsel was not deficient because Lester' s suggested instruction would


have been contrary to existing law. We agree with the State.

           The Sixth Amendment and the Washington Constitution guarantee a criminal defendant


the right to effective representation.            U. S. CONST.   amend.     VI; WASH. CONST.         art.   I, § 22.   The




                                                            9
No. 44633 -2 -II


                                                                                                 test9: (
defendant bears the burden          on appeal   to   prove   both   prongs of   the Strickland              1) Counsel' s


representation fell below an objective standard of reasonableness and was thus deficient; and ( 2)


but -for counsel' s deficient performance, the result of the proceeding would have been different.

State    v.   Humphries, 181 Wn.2d 708, 720, 336 P. 3d 1121 ( 2014).                 A reviewing court is " highly

deferential" when considering counsel' s performance. Humphries, 181 Wn.2d at 720. We review

the reasonableness of counsel' s performance by considering all the circumstances surrounding

counsel' s trial decisions. State v. Hamilton, 179 Wn. App. 870, 879, 320 P. 3d 142 ( 2014).

              The jury instruction on diminished capacity proposed by Lester' s counsel cited WPIC

18. 20   and copied     it   verbatim.   We upheld a jury instruction identical to WPIC 18. 20 in State v.

Marchi, 158 Wn.          App.    823, 834, 836, 243 P. 3d 556 ( 2010), review denied, 171 Wn.2d 1020


 2011).        We have twice rejected the argument that the State should bear the burden of disproving

a defendant' s diminished capacity defense. State v. James, 47 Wn. App. 605, 608, 736 P. 2d 700

 1987) (      the trial court was not required to instruct the jury that the State had the burden of

disproving diminished capacity caused by intoxication); State v. Sao, 156 Wn. App. 67, 76 -77, 230

P. 3d 277 ( 2010),     review   denied, 170 Wn.2d 1017 ( 2011) ( intoxication          or diminished capacity does

not add an additional element to the charged offense, which the State must disprove at trial). 10 If

Lester' s counsel had proposed a jury instruction that required the State to disprove his diminished

capacity defense, such a request would have been futile as contrary to controlling case law.

Lester' s counsel was not deficient for not offering such an instruction.



9 Strickland v. Washington, 466 U.S. 668, 687 -88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).

1° Lester implicitly urges us to change the law by arguing that these holdings are incorrect. We do
not address this argument because Lester does not challenge the jury instruction for error directly
and instead raises the argument indirectly in the context of ineffective assistance of counsel.


                                                             10
No. 44633-2 -II



                                                 CONCLUSION


        The trial   court   did   not violate   Lester'   s   Sixth Amendment      right.   Though the trial court


improperly admitted Lewis' s entire statement to Taylor without excluding the self -serving portion

of that statement, the error was harmless. Lester did not receive ineffective assistance of counsel.

We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.



                                                                   94w4-   1-ovi
                                                                   Sutton, J.
 We concur:




   hanson, C. J.




Maxa,




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