State v. Donald
316 P.3d 1081
Wash. Ct. App.2013Background
- Defendant Harold Donald convicted of first-degree assault and attempted robbery after DNA/fingerprint linked him and Lorenzo Leon to a brutal attack; Leon pled guilty to attempted robbery but did not testify at Donald’s trial.
- Donald’s trial theory was an alternate-suspect defense: that Leon acted alone. He sought to admit Leon’s prior violent convictions (propensity) and evidence of Leon’s mental illness (including alleged command hallucinations).
- Trial court excluded Leon’s prior convictions as impermissible propensity evidence under ER 404(b) and limited mental-health evidence (admitted malingering evidence but excluded testimony about command hallucinations).
- Jury convicted; trial court imposed an exceptional 397-month sentence. Donald appealed, arguing ER 404(b) exclusion violated his Sixth Amendment right to present a defense and raising an instructional-error claim for the first time on appeal.
- The court reviewed (both de novo and abuse-of-discretion standards would not change the outcome) and affirmed: ER 404(b) applies to third‑party propensity evidence and its application here did not violate the constitutional right to present a defense; exclusion of the mental-health evidence was within discretion; the instruction claim was unpreserved.
Issues
| Issue | Donald’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether ER 404(b) bars a defendant from offering a third party’s prior crimes to prove that third party acted on the charged occasion (reverse propensity) | ER 404(b) should not apply to evidence offered by a defendant; exclusion unconstitutionally infringes right to present a defense; court should use a straight relevance/ER 403 balancing test | ER 404(b) plainly bars propensity evidence of "a person" (not just the accused); admissibility is governed by ER 404(b) and ER 403 where applicable | ER 404(b) excludes third‑party propensity evidence; defendant’s proposed construction rejected |
| Whether exclusion of third‑party propensity evidence violated Donald’s Sixth Amendment right to present a defense | Exclusion deprived him of meaningful opportunity to present alternate-suspect theory | Rule serves reliability and trial‑efficiency interests; exclusion is not arbitrary or disproportionate | No constitutional violation; ER 404(b) is a reasonable, proportional evidentiary rule akin to Scheffer |
| Whether trial court abused discretion by excluding evidence that Leon experienced "command hallucinations" | Such evidence was relevant to Leon’s motive/propensity to act alone | Court reasonably excluded it to avoid mini‑trial on Leon’s competency/mental state, confusion, delay | No abuse of discretion; admitted evidence (malingering calls) was sufficient to present defense |
| Whether jury instruction stating jury "duty" to convict was erroneous | Instruction improperly told jury it must convict if elements proved beyond reasonable doubt (removing common‑law mercy acquittal) | Defense failed to object at trial; error not preserved and no demonstrated prejudice | Unpreserved under RAP 2.5; claim denied |
Key Cases Cited
- Washington v. Texas, 388 U.S. 14 (1967) (prohibiting arbitrary exclusion of defense witnesses under Sixth Amendment)
- Chambers v. Mississippi, 410 U.S. 284 (1973) (due process violation where evidence rules arbitrarily exclude reliable, critical defense evidence)
- Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of evidence that would cast doubt on confession can violate right to present a defense)
- Rock v. Arkansas, 483 U.S. 44 (1987) (per se exclusion of post‑hypnosis testimony violated defendant’s right to testify)
- United States v. Scheffer, 523 U.S. 303 (1998) (upholding categorical exclusion of polygraph evidence as a rational, proportional evidentiary rule)
- United States v. McCourt, 925 F.2d 1229 (9th Cir. 1991) (404(b) applies to other persons’ prior acts; rules prohibit propensity use regardless of who offers it)
- United States v. Lucas, 357 F.3d 599 (6th Cir. 2004) (recognizing relevance/403 balancing but affirming that prior‑acts rules prohibit pure propensity proof without another proper 404(b) purpose)
- United States v. Williams, 458 F.3d 312 (3d Cir. 2006) (refusing to apply a pure balancing test to admit third‑party propensity evidence; 404(b) prohibition applies regardless who offers evidence)