The State of Washington, Respondent, v. Tristian Anthony Clarke, Appellant.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2007 Wash. App. LEXIS 2478
August 20, 2007, Filed
JUDGES: Ellington, J., Appelwick, C.J., Becker, J.
¶1 Per Curiam — A jury found Tristian Clarke guilty of forcibly raping J.O. and assaulting her friend, T.B. Clarke challenges admission of several recordings, including a voicemail recording of Clarke and J.O. struggling over a cell phone, an excerpt of a call to 911, and a recording of his call to a friend from jail. He also alleges his attorney was ineffective because she proposed an erroneous jury instruction on the assault charge. We reject Clarke’s challenges and affirm.
¶2 Tristian Clarke and Allen Dennis met two women, T.B. and J.O., outside a Pioneer Square nightclub after it closed. All four had been drinking, although T.B. and Clarke were more intoxicated than the others. T.B. invited the men back to her apartment, where J.O. was staying.
¶3 T.B. does not remember, but Clarke claims they had consensual sex at the apartment while J.O. and Dennis went to the store. After they returned, T.B. and Clarke came out of the bedroom. T.B. lay down on the couch with her head on J.O.’s lap and either fell asleep or passed out.
¶4 Shortly after Clarke came out of the bedroom, relations between Clarke, Dennis and J.O. began to deteriorate. J.O. asked the men to leave, and used T.B.’s phone to call some friends to come over for protection. While J.O. was sitting on the couch, Clarke pulled out his penis and placed it on J.O.’s head. J.O. told him not to be disrespectful, and asked the men to leave again.
¶5 From this point, the accounts of events diverge dramatically.
¶6 J.O. testified that after she asked the men to leave, Clarke was pacing around and calling T.B. names. J.O. told him to wait outside and that her friends were on their way, and began dialing her friends again. Clarke told her to shut up, put her in a headlock, and dragged her behind the couch. Clarke and J.O. wrestled over the phone.
¶7 According to J.O., Dennis told Clarke to leave J.O. alone, and then ran out the door to avoid J.O.’s friends. J.O. testified that after Dennis left, Clarke punched her multiple times and pushed her onto the floor. J.O. was still holding the phone, and “speed-dialed” her friend, Tessa Jackson, who lived in the same apartment complex. The call went to Jackson’s voicemail, which recorded the sounds of a struggle. J.O. testified Clarke knocked or grabbed the phone out of her hand, pulled down her pants, and raped her. J.O. screamed and reached over and pulled T.B.’s hair. T.B. awoke and saw Clarke on top of J.O.
¶8 Clarke got up and walked towards the kitchen to leave. T.B. testified she saw Clarke grab her keys. She blocked the apartment doorway to prevent him from taking her keys. Meanwhile, J.O. slipped by and ran out the door, crying. T.B. and Clarke argued about the keys. According to T.B., Clarke at last returned the keys, forcefully shoved her out of the way, and walked down the hallway towards the exit. T.B. was angry. She followed behind Clarke, yelling at him and asking for her cell phone, which was in Clarke’s pocket. T.B. testified that just outside the apartment building, Clarke turned around, called her a name, and punched her.
¶9 According to Clarke, the night transpired in an entirely different way. After he and T.B. had consensual sex and T.B. was passed out on the couch, J.O. was flirting with him. Clarke acknowledged that J.O. became upset and started to call her friends, and that they wrestled over the phone. But according to Clarke, after Dennis left, J.O. pushed Clarke onto the floor, he invited her to join him, she kissed him, and they had consensual sex. They stopped when T.B. woke up.
¶10 Believing the women would be angry at him for having sex with both of them, Clarke got up and walked to the kitchen to leave. He mistook the keys on the counter for his own and picked them up. T.B. blocked the doorway, asking for the keys. When Clarke realized they were hers, he returned them and walked out the door. He denied shoving T.B. According to Clarke, just after he left the building, someone ran up from behind and hit him, and he instinctively turned around and punched back. When he looked down, he realized he had hit T.B. Tired and wanting to leave, Clarke walked away and found Dennis. They saw a car coming. Afraid J.O.’s friends were inside, the men jumped over a fence and went into the woods.
¶11 Meanwhile, J.O. was at Jackson’s apartment. They called 911. Police arrived and apprehended Dennis and Clarke in the woods.
¶12 At trial, the court admitted the message recorded on Jackson’s voicemail and an excerpt of J.O.’s call to 911 as evidence. In addition, the court admitted a recording of a phone call Clarke made to Dennis from jail in which they discussed a letter written by Clarke. The jury found Clarke guilty of raping J.O. and assaulting T.B.
¶13 Clarke contends the rape conviction should be reversed because the court abused its discretion by playing the voicemail message and part of the 911 call multiple times for the jury, and by admitting the recording of the phone call from the jail. He also contends the assault conviction should be reversed because his counsel should not have proposed a first aggressor instruction.
Admission of Recordings
¶14 CrR 6.15(e) directs that “all exhibits received in evidence” accompany the jury into deliberations. CrR 6.15(f) gives courts discretion to permit a jury to replay recorded evidence “in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence.”
¶15 Voicemail Message. Because Jackson did not answer when J.O. called her, the sounds of J.O. and Clarke’s struggle were inadvertently recorded on Jackson’s voicemail. The State played the recording without objection during J.O.’s direct examination and Clarke’s cross-examination. During deliberations, the jury asked to listen to the tape again, and asked for playback equipment. The court denied the request for playback equipment, but over Clarke’s objection granted the request to replay the tape. Afterward, defense counsel realized the jury had not heard the entire recording, and both counsel agreed to have the jury return and listen to the voicemail again in its entirety. Both counsel further agreed the jury could hear the entire message a second time if it requested. The court played the recording twice more for the jury. The next day, the jury asked to hear the voicemail message again at least two more times, and to have a transcript. Defense counsel suggested the court play the tape one more time. The State agreed. The court played the tape once more and denied the request for the transcript.
¶16 The recording of the struggle was very difficult to understand, which presumably explains why Clarke himself requested that the jury hear the recording in its entirety, and agreed when the jury asked to listen again. There is no showing that the additional replay caused prejudice to Clarke. The court did not abuse its discretion.
¶17 911 Call. After J.O. went to her friend Jackson’s apartment, the women called 911. Sobbing, J.O. told the 911 operator, “Some guy just hit me and raped me.” Ex. 10. Jackson then took the phone and answered the operator’s questions on J.O.’s behalf. The court admitted J.O.’s single sentence, but excluded Jackson’s statements. The State played the excerpt during J.O.’s testimony. Over Clarke’s objection, the State played the excerpt again when Jackson testified about J.O.’s upset demeanor. The State played the tape a third time during closing. Over Clarke’s objection, the court granted the jury’s request to listen to the 911 call once more during deliberations.
¶18 Clarke argues that the 911 call, because of its hysterical nature, prompted an emotional rather than rational response from the jury, and that playing it multiple times exacerbated the likelihood of prejudice.
¶19 Here, the admitted portion of the 911 call lasted only a few seconds. It was played four times over seven days. Unlike State v. Ross, 42 Wn. App. 806, 812-13, 714 P.2d 703 (1986), 1 where the jury was given unfettered access to a 911 tape, the court took the precautionary step of supervising the replay. There is no showing that the replay was unduly prejudicial, and no abuse of discretion.
¶20 Jail Call. Clarke next contends that the court violated his right to privacy by admitting a tape of a phone call he made to Dennis from jail. Clarke argues such recordings violate the Washington Privacy Act, RCW 9.73.010 through .260, and former Washington Administrative Code provisions 289-24-100 and -200 and, as a result, are inadmissible. We rejected these arguments in State v. Modica, 136 Wn. App. 434, 149 P.3d 446 (2006), and we decline to revisit them here. Like the defendant in Modica, Clarke was a pretrial detainee in jail, and an automated recording informed both parties to the conversation that the call would be recorded and monitored. Recording the call violated neither the Washington Privacy Act nor the Washington Administrative Code. Id. at 449-50. The recording was admissible.
1 Abrogated on other grounds by State v. Palomo, 113 Wn.2d 789, 783 P.2d 575 (1989).
¶21 At trial, the State contended that both the shove at the apartment door and the punch outside constituted assault. The defense proposed, and the court gave, instructions on self-defense to the assault charge. Clarke contends his counsel was ineffective because the instructions included a first aggressor paragraph.
¶22 Where a defendant presents evidence that he reasonably believed the victim was about to harm him or another person and he acted in defense, the State must prove the absence of self-defense beyond a reasonable doubt. State v. Rodriguez, 121 Wn. App. 180, 185, 87 P.3d 1201 (2004); State v. Douglas, 128 Wn. App. 555, 563, 116 P.3d 1012 (2005). But a defendant who initially provokes the victim to act with force cannot claim self-defense unless he first withdraws from the confrontation. State v. Riley, 137 Wn.2d 904, 910, 976 P.2d 624 (1999). If there is credible evidence the defendant provoked the altercation and essentially created the need to act in self-defense, a first aggressor instruction is appropriate. Such an instruction must be used with caution, however, as it lessens the State’s burden of providing the absence of self-defense. Id. at 910-11.
¶23 The jury was instructed as follows:
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured and when the force is not more than is necessary.
The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. …
It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat.
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use force upon another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
Clerk’s Papers at 77, 78, 80.
¶24 The evidence regarding the shove supports neither a self-defense nor a first aggressor instruction. If Clarke did in fact push T.B. out of the way, there is no evidence that Clarke was acting to protect himself. Where there is no evidence of self-defense, a first aggressor instruction cannot be warranted.
¶25 Nor does the evidence regarding the punch support self-defense or first aggressor instructions. T.B. and Clarke agreed that Clarke walked down the hall and had exited the building after the (alleged) shove. Clarke had clearly withdrawn, eliminating the justification for a first aggressor instruction. Clarke testified that after leaving the building, someone–he did not know who–came up behind him, punched him, and he instinctively turned and punched back.
¶26 But he later explained that T.B.’s cell phone went off in his pocket outside, and that she came up behind him, asked him a question and then punched him. He turned around, said “Bitch,” and punched her in the face. He testified that, “When I turned around, she was not attempting to punch me.” RP (May 4, 2006) at 148. Self-defense requires a reasonable belief of imminent harm. Clarke’s testimony shows he was retaliating against his assailant, not acting based on a belief he was about to be harmed further.
¶27 To demonstrate ineffective assistance of counsel, a defendant must show that his attorney’s performance was deficient, or below an objective standard of reasonableness based on all of the circumstances, and that he suffered prejudice as a result. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice occurs if there is a reasonable probability that except for counsel’s errors, the result of the proceeding would have been different. Id. at 335.
¶28 Including an unwarranted first aggressor instruction falls below an objective standard of reasonableness. See, e.g., State v. Wasson, 54 Wn. App. 156, 161, 772 P.2d 1039 (1989). But because Clarke was not entitled to self-defense instructions at all, there is not a reasonable probability that the result of the proceeding would have been different. McFarland, 127 Wn.2d at 335. Clarke does not demonstrate ineffective assistance of counsel.