State Of Washington, V Joseph Raymond Whearty, 47489-1

Background

Whearty and Dalmeny were dating, lived together with Dalmeny’s two minor daughters, and both had MMA experience; Dalmeny sustained injuries after an incident on January 27, 2015.
State charged Whearty with unlawful imprisonment and two counts of second-degree assault (by strangulation/suffocation and assault with intent) arising from a sequence of acts that allegedly restrained and assaulted Dalmeny and involved the children; jury convicted of unlawful imprisonment and fourth-degree assault (as a lesser included offense), with household/child-location special verdicts.
Disputed factual narrative: Dalmeny described a sustained violent episode (bed restraint, mattress, wrist twisting, blocking car, jumping on car); Whearty admitted some contact but claimed self-defense and denied many acts, asserting concern about Dalmeny driving impaired.
Trial developments: court admitted Whearty’s custodial statements; excluded video of Dalmeny’s MMA match as more prejudicial than probative; defense elicited some inconsistencies but did not recall Dalmeny to confront certain testimony; hearsay questions about Whearty’s out-of-court remarks to the arresting deputy were sustained.
Whearty appealed claiming (1) required unanimity instruction for unlawful imprisonment, (2) exclusion of MMA video violated right to present a defense, (3) ineffective assistance for failure to adequately impeach witnesses, and (4) erroneous exclusion of hearsay under ER 106/801(d)(1)(ii).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Whearty)	Held
Whether a unanimity instruction was required for unlawful imprisonment	No—alleged acts formed a single continuing course of conduct	Multiple alternative acts alleged required jury unanimity on which act supported conviction	No unanimity instruction required; acts were part of one continuous course, so no manifest constitutional error shown
Whether excluding MMA match video violated Whearty's right to present a defense	Exclusion proper because video was prejudicial and cumulative	Video was relevant to self-defense by showing victim’s fighting ability	Exclusion did not violate right to present a defense: minimal need and substantial prejudice; proper Darden balancing
Whether defense counsel was ineffective for failing to impeach key inconsistencies	Counsel reasonably impeached some inconsistencies and tactically chose not to recall witness	Counsel failed to impeach on head-injury location and on who exited car, prejudicing defense	No ineffective assistance: counsel impeached head-injury inconsistency and had legitimate tactical reasons regarding car-exit testimony; no prejudice shown
Whether trial court erred by sustaining hearsay objections and denying admission under ER 106/801(d)(1)(ii)	Rulings proper; ER 106 applies to writings/recordings and ER 801(d)(1)(ii) not applicable at that time	Statements to deputy should have been admitted under ER 106 or as non-hearsay under ER 801(d)(1)(ii)	No preserved claim and substantively incorrect: ER 106 covers recorded/written statements only; ER 801(d)(1)(ii) inapplicable because declarant had not testified then; rulings upheld

Key Cases Cited

State v. Bobenhouse, 166 Wn.2d 881 (unanimity instruction is constitutional in nature)
State v. Gordon, 172 Wn.2d 671 (manifest error and practical consequences standard for unpreserved unanimity claims)
State v. O'Hara, 167 Wn.2d 91 (requirements for manifest constitutional error)
State v. Locke, 175 Wn. App. 779 (unanimity not required when acts are a continuing course of conduct)
State v. Brown, 159 Wn. App. 1 (factors for assessing continuing course of conduct)
State v. Darden, 145 Wn.2d 612 (balancing test for excluding defense evidence under right to present a defense)
State v. Jones, 168 Wn.2d 713 (minimal relevance threshold for defendant’s proffered evidence)
State v. Reichenbach, 153 Wn.2d 126 (two-prong Strickland-style test for ineffective assistance in Washington)
State v. Grier, 171 Wn.2d 17 (presumption of reasonable assistance and requirement to show lack of conceivable tactical basis)
State v. Sutherby, 165 Wn.2d 870 (standard of review for ineffective assistance claims)
State v. Guloy, 104 Wn.2d 412 (preservation rule for appellate review of evidentiary objections)
State v. Perez, 139 Wn. App. 522 (ER 106 applies only to writings or recordings)
State v. Stacy, 181 Wn. App. 553 (preservation of hearsay arguments at trial required on appeal)