State v. Dobbs

Owens, J.

¶1 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. 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).

¶2 In this case, Timothy John Dobbs engaged in a campaign of threats, harassment, and intimidation against *5his 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).

FACTS

¶3 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.

¶4 While the police officer was at her residence, C.R. received text messages and a phone call. She explained to *6the 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.

¶5 On November 10, 2009, C.R. called James Applebury, her cousin’s fiancé 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 Applebury 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.

¶6 Later that same evening, Applebury’s fiancée 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 *7then fled, jumping over the fence into the neighbor’s yard. With the 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.

¶7 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, “ T told you ... you were going to find me dead.’ ” Id. at 116. She also gave the police a note that Dobbs had left behind earlier that day, which one of the police officers read into the record at trial:

“Last days. The countdown on your ... ass. You should know me by now [C.R.]. 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.”

Id. at 120.

¶8 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.” Id. at 123.

¶9 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.’ ” *8Id. 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).’ ” Id. at 126-27.

¶10 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. Id. 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.

¶11 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 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 *9him 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.

¶12 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 of hearsay objections if the Court finds forfeiture by wrongdoing.” 2 VRP at 282.

¶13 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.

¶14 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 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. Id. at 917-18. The Court of Appeals concluded that under the same reasoning underlying the forfeiture by wrongdoing, a defendant waives his hearsay objections when his actions make it necessary for the State to rely on out-of-court statements. Id. at 918. We granted Dobbs’s subsequent petition for review. State v. Dobbs, 175 Wn.2d 1013, 287 P.3d 10 (2012).

*10ISSUES

¶15 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?

¶16 2. If Dobbs forfeited his confrontation right by wrongdoing, did he also waive any hearsay objections he might have?

STANDARD OF REVIEW

¶17 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, 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.” Id.

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

¶18 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 *11she causes the witness to be unavailable. Mason, 160 Wn.2d at 925. This rule — known as the forfeiture by wrongdoing doctrine — “permitís] 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.

¶19 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. Id. 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 wrongdoing of the accused based upon evidence that is clear, cogent, and convincing.” Id. at 927.

¶20 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.” Id. 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.

¶21 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.

¶22 When the standard of proof is clear, cogent, and convincing evidence, the fact at issue must be shown to be “highly probable.” In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). In this case, we hold that the State *12has established Dobbs’s pattern of abuse and intimidation toward C.R. and has 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 judge’s finding of fact that there was clear, cogent, and convincing evidence that Dobbs was the cause of C.R.’s absence is supported by substantial evidence in the record.

¶23 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 if they 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 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.” Id. at 123.-

¶24 Taken together, these facts show that Dobbs was armed, consistently threatened C.R. if she cooperated with *13the 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.

¶25 We recognize that because we did not formally adopt the forfeiture by wrongdoing doctrine until 2007, 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] 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.

¶26 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. Id. 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 *14would retaliate against him for “ ‘roll[ing] over’ on Fallen-tine.” Id. at 621-22 (alteration in original).

¶27 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 of Fallentine, 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. Id. 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.’ ” Id. The Court of Appeals held that the evidence showed that Fallentine intentionally prevented Clark from testifying. Id. at 623.

¶28 We find the evidence in this case to be even stronger. In contrast to Clark, who directly denied that his fear of Fallentine 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. Id. 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.

¶29 Admittedly, in this case we do not have a direct statement from C.R. stating that she feared Dobbs would *15kill 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 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.

¶30 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 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 *16in his repeated efforts to deter C.R. and keep her away from the stand.

¶31 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 to find only 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

¶32 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 States 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 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.

¶33 In Giles, the United States Supreme Court underwent a thorough review of the history behind the forfeiture *17by 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.” Id. 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.” Id. 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.” Id. at 913. If such wrongdoing did not result in a waiver of hearsay objections, a defendant would have a perverse incentive to use threats, intimidation, or violence to prevent a witness from coming to court.2 Such an outcome defies common sense.

CONCLUSION

¶34 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 *18rights and hearsay objections through his wrongdoing. We affirm the Court of Appeals.

C. Johnson, Fairhurst, J.M. Johnson, Stephens, and González, JJ., concur.

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.1.

We note that this rale, 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”).