# FILE IN CLERKS OFFICE aJ1R!ME COURT, STATE OF WA3HlNGTON DATE 

### MAR 13 

## 2014

# ~~

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) 

### Respondent, ) 

### No. 87472-7 ) 

### v. ) 

### EnBanc ) 

### TIMOTHY JOHN DOBBS aka TIMOTHY ) 

### JOHN ST. LOUIS, ) ) 

### Petitioner. )**~** ) ) 

### IntheMatter ofthe Personal Restraint of ) ) 

### TIMOTHY J. DOBBS, ) 

### MAR 

## 13 

## 2014 ) 

### Filed Petitioner. ) ) 

### OWENS, J. -- 

### Underthe Sixth Amendment to the United States Constitution, criminal defendants have the rightto confront the witnesses against them. However, ifthe defendant intentionally causes the absence ofa witness from trial, he or she forfeits that right. As the esteemedJustice Tom Chambers wrote, "[W]e will not allow [the defendant] to complainthathe was unable to confront [the witness] when [the defendant] bears responsibility for [the witness's] unavailability." State v.State v. Dobbs No. 87472-7 Mason, 160 Wn.2d 910, 925, 162 P.3d 396 (2007). Without such a forfeiture rule, defendants wouldhave "anintolerable incentive
...to bribe, intimidate, or evenkill witnesses against them." Giles v. California, 554 U.S. 353, 365, 128 S. Ct. 2678, 171 L. Ed. 2d488 (2008). Inthis case, Timothy JohnDobbs engaged in a campaign ofthreats, harassment, and intimidation againsthis ex-girlfriend, C.R., that included a drive-by shooting at herhome and warnings that she would "'getit"' for callingthe police and she would "regretit" ifshe pressed charges against him. 1VerbatimReport of Proceedings (VRP) at 97, 123. As C.R. reported the increasingly violent activities of Dobbs against her, she explainedto the police that she was terrifiedthat she was going to wind up dead. After Dobbs was arrested, he made yet another intimidatingphone call to C.R., threatening that ifshe went forward and pressed charges against him, she wouldregret it. When C.R. failed to showup to testify attrial, the trialjudge found that there was clear, cogent, and convincing evidencethat Dobbs was the cause ofher absence andthus had forfeited his confrontationright. We agree. While Dobbshas theright to confrontwitnesses against him, he forfeited his rightto confront C.R. whenhe chose to threaten her with violence for cooperating withthe legal system. "Topermitthe defendantto profit from such conductwould be contraryto public policy, common sense and the underlying purpose ofthe confrontation clause." UnitedStates v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976).

2State v. Dobbs No. 87472-7 

### FACTS The criminal charges inthis case arose out ofan escalating series ofviolent and threatening actions Dobbs took against C.R. shortly afterthe end oftheir relationship. OnNovember 7, 2009, police were dispatched to C.R.'s residence inresponse to a domestic violence report shortlybefore 5:00 a.m. C.R. explainedto the police officer that Dobbs hadbeen following her andthreatening to shoot her ifshe wouldnot let him be her boyfriend anymore. C.R. indicated thatDobbs hadjustbeen at her residence beating onher door, wanting to come in. Afterthey argued and she told him to leave, she heard a hissing noise outside and found thather tires had been slashed. While the police officerwas at herresidence, C.R. received text messages and a phone call. She explained to the officerthatthey were from Dobbs, and she putthe call on speakerphone so the officer couldhear. The caller argued with C.R. about why she had called the police onhim, reminded herthathe had warnedher about calling the police, and endedthe call by telling herthat she was going to '"getit."' 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 toldthe officer that Dobbs had toldherthathe was going to comeback and shootherhouse and everyonethere.

3State v. Dobbs No. 87472-7 

### OnNovember 10, 2009, C.R. called James Applebury, her cousin's fiancee who lived in a house on the same property as C.R.'sresidence. She told himthat Dobbs was leaving and wanted to know ifApplebury could confirm thatDobbs was gone. Applebury wentto the window and saw a manresembling Dobbs in a car similar to one thathe had seen Dobbs inpreviously. Shortlythereafter, 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 thatDobbs hadbeen stalking her and thathe had recently been at her house. The officers who responded to the call found C.R. extremely fearful and upset. She told themthat ifDobbs was not found, they were going to find her dead. The police later examinedthe outside ofC.R.'s residence and found recent bulletholes. Based onthe trajectory ofthe bulletholes, the police concludedthatthey came from the nearby alley. C.R. later played for police a voice mail from Dobbs that she received afterthe shooting. Thepolice reported that the voice mail basically said, '"Youheardthat. That was me and that's whatI can do."' 

### Id. at 123. Later that same evening, Applebury's fiancee told him thatDobbs was back on the property. Applebury calledthe police and while he was talking to the dispatcher, C.R. ran into thehouse, screamingthat Dobbs had a gun. Applebury looked across the yard throughthe open door to C.R.'sresidence and sawDobbs inside holding a gun. Dobbs then fled,jumping overthe fence into the neighbor'syard. Withthe

4State v. Dobbs No. 87472-7 assistance ofa K-9 unit, police trackedDobbs to a nearby Laundromat, where he was arrested. The nextmorning, C.R.'s neighbor found a handgun inhis yard and turned it overto thepolice. Whenthe police spoke with C.R. shortly after Dobbs had fled from herhome, theyreported that she was hysterical, upset, and fearful. She told them that Dobbs had been harassing and stalking her for two weeks. She explainedthat earlier that evening, he had pushedhis way inside herresidence andthat hehad a gun. She told the police, 

### '"Itold you ...youwere going to find me dead."' 

### !d. at 

### 116. She also gave the police a note thatDobbs had left behind earlierthat day that one ofthe police officers read into the record attrial: "Lastdays. The countdown onyour ... ass. You shouldknow me by now, Casey. You fucked up and tripped with
...the wrong brother. Youwillregretwhat
...you did and saidto me. Younever loved me. Younever cared about me and nowyouwill reap a world oftrouble and pain. Number 

### 1, you can apologizeto me and talkwith me face-to-face orNumber2, youknow you can't and won'tbe (inaudible) here in Longview or Washington. I'm going all out onthis with you. You're fucked up, bitch." Jd. at 120. The following day, the police spoke with C.R. again and she played a voice mail that she hadreceived from Dobbs fromjailthe night after he had been arrested. Thepolice describedthe voice mail as Dobbs "essentiallypleading withhernotto go forward and notto press charges againsthim and 

### it-- itkind ofquickly turned into kind ofa threatening ofdon'tdo this to me or-- oryou'llregret it." 

### !d. at 123.

5State v. Dobbs No. 87472-7 

### C.R. also showedthe police two text messages that she received the day ofthe shooting. The police photographedthe messages and thenread them aloud at trial. The first one said, "'Nexttime it is you, bitch. On, Bloods."' 

### !d. at 126. The second

one said, "'Bitch, youmove andthere will be hell to pay. Plus, my bro lives down there and he's aknown figure. You can'tget away from me. I told you you're mines (sic)."' 

### !d. at 126-27. Prosecutors charged Dobbs with eight crimes, including stalking, harassment, and drive-by shooting. The benchtrial began on January 25, 2010. C.R. was served with a subpoena, and the night before trial, an officer wentto C.R.'shouse to remind herto come to court the following morningto testify. The officerreported that C.R. responded "'Okay'" and closed the door. 

### !d. at 106. C.R. did not appear at trial the next day. Prosecutors and police attempted to contacther overthe next couple ofdays butwere unable to reach her. Thejudge eventually issued a formal warrant for C.R.'s arrestbut she was not located and never appeared at trial. The State asked the courtto rule thatDobbs could notraise the issue ofhis confrontationrights becausehe 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 thatthere is a sufficient basis thatthe 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 knewhe carried aweapon. Others had seen a black handgun. She had threatened to
-- he had threatened to shoot her in the past, ifshe wouldn't let him be her boyfriend. She said she was

6State v. Dobbs No. 87472-7 receiving textmessages callingher names. There is evidencethat

-- I'm deciding this by clear, cogent and convincing evidence. I have not decided this case based uponbeyond areasonable doubt. So, that should be emphasized. There is the

-- she believed it was the defendant that puncturedhertires. She said she believedthe defendant would-- he wouldhurt her because ofwhat she had said in the

-- because ofwhathe had said in the past, she believed he would shoother. He had ahandgun. So, I think that basedupon the evidence thatis in front ofthis Court, it is clear, cogent and convincing that she was afraid ofhim and that's why she isn'there to testify. And, that based onthat evidence, he does forfeit the rightto object on the confrontation issues, not as to the basis for any hearsay. 2 VRP at 255-56. Thetrial courtthen addressed whetherthe forfeiture ofone's confrontation rights also waives one's hearsay objections. The courtruledthatunder

### State v. Fallentine, 149 Wn. App. 614, 215 P.3d 945 (2009), "there is also a waiver ofhearsay objections ifthe Court finds forfeiture by wrongdoing." 2 VRP at 282. Thejudgefound 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 unlawfulpossession ofa firearm, and (6) obstructing a law enforcement officer. Dobbs appealed and the Court ofAppeals affirmed, holding that there was sufficient evidence that Dobbs intentionally engaged in misconductto keep C.R. from testifying, including telling her she would die ifshe continuedto cooperate withthe police and then later, after he was arrested, threatening that she would regret it ifshe

7State v. Dobbs No. 87472-7 proceededto press charges. 

### State v. 

### Dobbs, 167 Wn. App. 905, 914-15, 276 P.3d 324 (2012). The Court ofAppeals also heldthat the trialjudgedidnot err in admitting evidence that would have been inadmissible as hearsaybut for the doctrine of forfeiture bywrongdoing. 

### !d. at 917-18. The Court ofAppeals concludedthatunder the same reasoning underlying the forfeiture ofwrongdoing, a defendantwaives his hearsay objections when his actions make it necessary for the State to rely on out-ofcourt statements. 

### !d. at 918. We granted Dobbs's subsequentpetition for review. 

### State v. 

### Dobbs, 175 Wn.2d 1013, 287 P.3d 10 (2012). ISSUES 1. Did substantial evidence supportthe trialjudge'sruling that Dobbs had caused C.R.'s absence and thus forfeited his right to confronther? 2. IfDobbs forfeited his confrontationrightbywrongdoing, did he also waive any hearsay objections he mighthave? STANDARD OF REVIEW Constitutional issues, such as thepotential violations ofthe SixthAmendment right to confront witnesses, are subjectto de novo review. 

### State v. 

### Price, 158 Wn.2d 630, 638-39, 146 P.3d 1183 (2006). We review a trial court's findings offact to determine whether they are supportedby substantial evidence. 

### State v. 

### Hill, 123 Wn.2d 641, 644-47, 870 P.2d 313 (1994). Wereviewtrial court decisions onthe admissibility ofevidence for abuse ofdiscretion. 

### State v. 

### Powell, 126 Wn.2d 244,

8State v. Dobbs No. 87472-7 258, 893 P.2d 615 (1995). A trial court abuses its discretion whenits decision "is manifestlyunreasonable orbaseduponuntenable grounds orreasons." 

### !d. ANALYSIS 1. SubstantialEvidence Supportedthe TrialJudge's Ruling ThatDobbsHad Caused C.R. 'sAbsence and Thus ForfeitedHis Right to ConfrontHer The SixthAmendment gives criminal defendants therightto confrontthe witnesses againstthem. 1 However, a criminal defendantforfeits this right whenhe or she causes the witness to be unavailable. Mason, 160 Wn.2d at 925. This ruleknown as the forfeiture bywrongdoing doctrine-"permit[s] the introduction of statements ofa witness who was 'detained' or 'kept away' bythe 'means or procurement' ofthe defendant." Giles, 554 U.S. at 359. InWashington, we first adopted the forfeiture bywrongdoing doctrine in Mason. 160 Wn.2d at 925. We explainedthatthe doctrine is grounded inthe principle ofequity, and that a defendant cannot complain ofhis inability to confront a witness whenhis ownactions causedthatwitness to beunavailable. 

### !d. at 925-26. Weheldthatwhen a trial court is faced with a potential forfeiture by wrongdoing, "thetrial courtmust decide whetherthe witness has beenmadeunavailable bythe

1Article I, section 22 ofthe 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 confrontationrights than the federal constitution, we do not engage in that analysis. Mason, 160 Wn.2d at 917 n.l.
9State v. Dobbs No. 87472-7 

### wrongdoing ofthe accused based upon evidence that is clear, cogent, and convincing." 

### !d. at 927. In

### Mason, we also heldthat "[s]pecific intentto preventtestimony is unnecessary" and that "[k]nowledge thatthe foreseeable consequences ofone's actions include a witness' unavailability at trial is adequate to conclude a forfeiture of confrontationrights." 

### !d. at 926. However, the United States Supreme Court later explained thatthe forfeiture by wrongdoing doctrine is limitedto those situations where the defendant engaged in the conductwiththe intentionto preventthe witness from testifying. 

### Giles, 554 U.S. at 361. Reading

### Mason and 

### Giles together, we conclude that a defendant forfeits the SixthAmendmentrightto confront a witness when clear, cogent, and convincing evidence shows thatthe witness has beenmade unavailable bythe wrongdoing ofthe defendant, and thatthe defendant engaged in the wrongful conduct withthe intention to preventthe witness from testifying. Whenthe standard ofproofis clear, cogent, and convincing evidence, the fact at issue must be shown to be "highlyprobable." 

### In re Welfare ofSego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973). In this case, we hold that the State has establishedDobbs's pattern ofabuse and intimidationtowards C.R. and shown it is highlyprobable that these violentthreats-whichDobbs explicitly and directly connectedto her decisions to call the police andpress charges-werethe cause ofher absence at trial. Thetrial

10State v. Dobbs No. 87472-7 

### judge's finding offact thatthere was clear, cogent, and convincing evidence that Dobbs was the cause ofC.R.'s absence is supportedby substantial evidence inthe record. First, we review the evidence. We know that Dobbs hadbeen stalking and threatening C.R. withviolence, including threats to shoot her. We knowthat C.R. knewDobbs had a gun and was terrified that he was goingto kill her. She told police that ifthey did not find Dobbs soon, they were going to find her dead. We know that after Dobbs threatened to shoot herhouse and everyone in it, 

### hepartially followed through onthatthreat by shooting at herresidence, showing C.R. very clearly thathe

was notmaking idle threats. We know that once C.R. chose to report Dobbs to the police, Dobbs beganharassing her about that decision and warned her that she was goingto "'getit."' 1VRP at 97. We know thatDobbs left a note with C.R. telling herthat she would "'reap a world oftrouble and pain.'" 

### Id. at 120. We knowthat C.R. received a text the day ofthe shooting that warned her that she would notbe safe

even ifshe moved, telling her that "'mybro lives downthere and he's a known figure"' and "'[y]oucan'tget away from me."' 

### Id. at 126-27. And weknowthat after he shot at C.R.'shouse, he returned with a gun again 

### and forced his way into her residence. We knowthat C.R. was forced to run from her ownhome, screaming for help. AfterDobbs was finally apprehendedthat evening, we knowthat he called C.R. fromjail and left a voice mail pleading with her notto press charges. Thepolice

11State v. Dobbs No. 87472-7 

### officer who listened to the voice mailrecalled that it "quicklyturned into kind ofa threatening ofdon't do this to me or-- oryou'llregret it." 

### !d. at 123. Takentogether, these facts showthatDobbs was armed, consistently threatened C.R. ifshe cooperated with the police, and followed through onthese threats by showing up at herhouse with a gun on multiple occasions, once even shooting at it. Anyrational individual would fear testifying against such aperson. And indeed, C.R.

was terrified ofDobbs. She knewhe carried a gun, and she knewhis threats were escalating. She toldpolice over and over that she was scaredthatDobbs was going to kill her. And Dobbs specificallythreatened her fromjail, warning her notto press charges. The onlypurpose such athreat could have wouldbe to intimidate C.R. into notparticipating inthe criminalproceedings againstDobbs. The trialjudgereviewed the evidence and made a finding offact thatthere was clear, cogent, and convincing evidence that Dobbs'sviolence and intimidation aimed at C.R. was the cause ofher decision against testifying againsthim at trial. Based on ourreview ofthe record, we find that his decision was supported by substantial evidence. We recognize thatbecause we did not formally adopt the forfeiture by wrongdoing doctrine until2007, there is little precedentto guide trial courts. Inthis case, the trialjudgerelied onFallentine, a Court ofAppeals case from 2009 and one ofthe only Washington cases to address forfeiture due to witness intimidation. He concluded that "this case ...has a stronger basis thanI thinkthe Falentine [sic]

12State v. Dobbs No. 87472-7 

### decision." 2 VRP at 282. We agree that the evidence in this case is even stronger than the evidence in Fallentine, where the Court ofAppeals dismissed a confrontation challenge. InFallentine, bothAnthony Clark and Conrad Fallentine were charged in connectionwith an arson andburglary. 149 Wn. App. at 618. Clark admitted committingthe arson with Fallentine and pleaded guilty, buthe laterrefused to testify against Fallentine. 

### Id. The State then soughtto introduce the testimony ofa social workerwho metwith Clark. She testified that Clarkhad toldherthathe was afraid of Fallentine, that he knew Fallentine carried afirearm, and that he believedFallentine or his associates would retaliate against him for '"roll[ing] over' onFallentine." Id. at 621-22 (alteration in original). However, when the courtheld ahearing to determine why Clarkrefused to testify, Clarkrecanted. 

### I d. at 622. He denied thathe was frightened and spoke favorably ofFallentine, saying he was "'like abrother"' and "'didn'tdo the arson."' Id. The social workertestified againto Fallentine's earlier statements offear, and this time testified that Clarkhad claimedthat Fallentine threatened to "'putahit"' out on him ifhe testified. 

### Id. at 622-23. There was no other evidence ofany threatto Clark, and the social worker also testified that Clark did not want to "'rat
... out"'Fallentine and "did not wantto be seen as a snitch inside thejail 'ontop ofeverything else."' 

### Id.

13State v. Dobbs No. 87472-7 

### The Court ofAppeals heldthatthe evidence showedthat Fallentine intentionally prevented Clark from testifying. 

### ld. at 623. We find the evidence in this case to be even stronger. In contrastto Clark, who directly denied that his fear ofFallentinewas 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 observedby multiple witnesses and left atrail oftext messages, voice mails, andbulletholes, there was no independent evidence to verify thatFallentine prevented Clark from testifying. The evidence supporting this proposition consisted only ofClark'shearsay statements to the investigator and social worker. Jd. 

### at 618, 621-23. Eventhis was somewhat diluted bythe fact that Clark also told the social worker thathe did not wantto be seen as a snitch inside thejail, suggesting a differentmotive for his changing story. 

### Id. at 622-23. But despite Clark's direct denial that his refusal to testify was causedbyFallentine and the indications that Clarkhad otherpotential motives, the court saw through the charade and held thatthere was clear, cogent, and convincing evidence that Clark's failure to testify was causedby Fallentine. 

### Id. at 616, 623. Admittedly, inthis case we do nothave a direct statement from C.R. stating that she feared Dobbs would kill her specifically as aresult ofhertestifying. Butthat is the nature ofthe forfeiture bywrongdoing doctrine, where witnesses are scared into silence. We cannot and do notrequire a direct statement from the witness who is

14State v. Dobbs No. 87472-7 

### intimidated into silence because such a requirement would exclude almost all absent witnesses' testimony, regardless ofevidence ofwitness 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 andinappropriatelyhighbarbecause, by definition, a witness who was intimidated into silence will not come forward to say as much. Here, we do have a police officer's testimony regarding the voice mail C.R. received from Dobbs injail where he warned that she should not press charges or she would "regretit." 1VRP at 123. The only purpose for such athreat was to intimidate C.R. into not participating inthe criminal proceedings againstDobbs. And it is highly probable thatthis threat was successful. Just because C.R. did not spell out exactly what type ofcooperation with law enforcement she feared would cause Dobbs to follow through onhis deaththreats does not meanthey did nothave their intended effect. C.R. repeatedly expressed terror ofDobbs and whathe would do. She had

seen Dobbs follow through onhis threats before whenhe fired bullets into her house, and it is highlyprobable that she feared the consequences oftestifying againsthim. C.R. should nothave to spell out for the court what is obvious to any rational observer: she was afraid Dobbs would again follow through onhis threats ifshe testified, perhaps to a muchmore dangerous extent. Every one ofDobbs'sthreatening text messages, voice mails, and uninvited appearances made it less rational for C.R. to

15State v. Dobbs No. 87472-7 

### risk her life to testify and more likelythatDobbs would succeed inpreventingher from doing so. There is simply too much evidence here ofDobbs's violence to avoid the conclusionthat it is highly probable thathe succeeded in his repeated efforts to deter C.R. and keep her away from the stand. Forfeiture by wrongdoing requires clear, cogent, and convincing evidence. It 

### does not require a showing beyond a reasonable doubt. A court does notneed to rule out all possibilities for a witness's absence; 

### itneeds only to find that it is highly probable thatthe defendant intentionally caused it. Here, all ofthe evidencepoints to that conclusion. The trial court entered a finding offact that clear, cogent, and convincing evidence showed thatDobbs caused C.R.'s absence from court. The court thenruled that, as aresult, Dobbs forfeited his rightto confront C.R. We holdthatthe trial court's finding offact was supportedby substantial evidence and the legal standard was properly applied. 2. WhenDobbs Forfeited His Confrontation Right by Wrongdoing, He Waived His Hearsay Objections The trial court and the Court ofAppeals heldthat whenDobbs forfeited his confrontation rights by wrongdoing, he also waivedhis hearsay objections. We agree. As the United State Supreme Courthas observed, '"[I]t seems apparentthat the Sixth Amendment's Confrontation Clause andthe evidentiary hearsay rule stem from the

sameroots." 

### 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 againstthe dangers of
16State v. Dobbs No. 87472-7 

### using out-of-court statements as proof. Butwhenthe defendant's actions 

### are the

reason that the State mustrely on out-of-court statements, he is hardly in aposition to complain aboutthe use ofthose out-of-court statements, whetherthrough an assertion ofconfrontation rights or ahearsay objection. Forthe same reasoning that underlies the forfeiture by wrongdoing doctrine, we hold that a defendantwho procures a witness's absence waives his hearsay objections to that witness's out-of-court statements. In 

### Giles, the United States Supreme Courtunderwent athorough review ofthe history behindthe forfeiture by wrongdoing doctrine. 554 U.S. at 358-69. The Court found that "[n]o case ortreatisethat we have found
... suggested that a defendant who committed wrongdoing forfeited his confrontationrights butnothis hearsay rights." 

### !d. at 365. The Courtwent onto commentthat "the distinctionwouldhave been a surprising one, because courts priorto the founding excludedhearsay evidence in large part

### because it was unconfronted." 

### !d. The majority ofcourts have agreed with the Supreme Court's conclusion. 

### See UnitedStates v. 

### White, 325 U.S. App. D.C. 282, 116 F.3d 903, 912 (1997). Indeed, when considering whetherforfeiture 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 arule ofevidence without constitutional weight." 

### !d. at 913. Ifsuch wrongdoing did not result in a waiver ofhearsay objections, a defendant wouldhave a

17State v. Dobbs No. 87472-7
perverse incentiveto use threats, intimidation, or violence to prevent a witness from comingto court.2 Such an outcome defies common sense. CONCLUSION Those inthe bestpositionto protectthe survivors ofdomestic violence are the survivors themselves. We find that it is highly likelythat C.R. choseto protectherself byrefusing to testify against Dobbs. Bythreatening C.R. with violence for cooperating withthepolice and pressing charges, Dobbs attemptedto preventher from testifying. We will notrewardhim for his success inbringing aboutthatresult. Wehold thathehas forfeited his confrontationrights andhearsay objections through his wrongdoing. We affirm the Court ofAppeals.

2We note thatthis rule, already adopted by the majority ofthe courts who have addressed it and adopted by this court in this opinion, has also recently been codified in Washington's Rules ofEvidence effective September 1, 2013. See ER 804(b)(6) (including in the list ofhearsay exceptions "[a] statement offered against aparty that has engaged directly or indirectly in wrongdoing that was intended to, and did, procurethe unavailability ofthe declarant as a witness.").
18State v. Dobbs No. 87472-7



### WE CONCUR:

19State v. Dobbs (TimothyJ.)

No. 87472-7 WIGGINS, J. (dissenting)-As part of Timothy John Dobbs's two-week campaign of harassing and stalking C.R., Dobbs warned C.R. not to call the police. Despite these threats, C.R. called the police after Dobbs pounded on her door and slashed her tires. Three days later, Dobbs apparently fired several shots into C.R.'s residence. Despite Dobbs's threats not to call the police, C.R. again called the police. Later that same evening, C.R. ran to her neighbor's house screaming that Dobbs was present and had a gun. The neighbor called police and C.R. told the police about Dobbs's threats and her fear that he would kill her. The police apprehended and jailed Dobbs. The next night Dobbs called from the jail and left a voice mail pleading with her not to go forward with charges and threatening her if she proceeded. Despite Dobbs's threats, C.R. played the voice message for the police and showed them two threatening text messages he had sent a few days earlier. There is no evidence of any other threats by Dobbs against C. R. for the next two months, while Dobbs was confined in jail. Thus, before Dobbs was arrested and jailed, C.R. repeatedly reported Dobbs's threats and attacks to police. Two months later, without any further known threats by Dobbs and while Dobbs was still jailed, C.R. failed to attend his trial.No. 87472-7 (Wiggins, J., dissenting) I. The state did not provide clear, cogent, and convincing evidence that Dobbs caused C.R.'s absence at trial The majority concludes that these facts clearly, cogently, and convincingly prove that Dobbs's actions caused C.R.'s absence at trial. But the majority's conclusion is mere speculation in light of the multiple plausible theories for C.R.'s nonappearance. It is certainly possible that Dobbs's phone call and voice message to C.R., along with his earlier acts of intimidation and harassment, dissuaded C.R. from testifying. However, it is also quite possible that she had some other motive: if the situation with Dobbs calmed after November 10, she may have decided she did not want him to be convicted. She may also have been intimidated by the prospect of appearing in court, or may have had a personal distaste for cooperating with law enforcement once the original threat had dissipated. As early as November 17 she was not showing up for appointments at the police station, and no evidence suggested it was because she was afraid. We do not know what occurred in the months between her sworn statement to police on November 10 and her absence from trial on January 25 to change C.R.'s perspective (even assuming she ever intended to testify); we can only speculate. Where the evidence supports multiple inferences as to the cause of a witness's failure to appear, we cannot conclude that the evidence of causation is clear, cogent, and convincing. See Wilkie v. Simonson, 51 Wn.2d 875, 877-78, 322 P.2d 870 (1958) (where evidence adduced sustains two equally plausible theories, the party with the burden of proof has failed to meet its burden).

2No. 87472-7 (Wiggins, J., dissenting) Indeed, to reach its conclusion, the majority overlooks the remarkable dearth of evidence connecting Dobbs's actions to C.R.'s nonappearance. None of the officers or civilian witnesses who were in contact with C.R. leading up to the trial offered any evidence on whether C.R. had mentioned a plan not to appear, or offered any reasons why C.R. might not appear. Officers contacted C.R. several times after the incident on November 10. And notably, Officer Michael Headley spoke with her the night before the start of trial, and C.R. assured Headley that she would be at trial. Civilian witnesses James Applebury and Sarah Ellis lived next to C.R. throughout this period. 1 They both offered testimony to support the charges, but neither offered any evidence to explain why C.R. declined to appear. The majority's conclusion is not only speculative, it is counterintuitive. Dobbs's threats did not prevent C.R. from contacting police before he was arrested and jailed. The majority concludes somewhat implausibly that once behind bars, Dobbs somehow instilled such a fear in C.R. so as to prevent her from testifying at the very trial that would ensure her continued safety by placing Dobbs behind bars for a considerable period oftime. Under the majority's analysis, every defendant who threatens a witness not to contact police or to testify automatically forfeits the right to cross-examine the witness. The majority authorizes a court to admit the witness's prior statements about the crime without any evidentiary support that the threats caused the witness' absence. Indeed, that is what happened here. The State presented evidence of threats, which had never before prevented C.R. from contacting the police and

1James Applebury is C.R.'s landlord and Sarah Ellis is C.R.'s neighbor. 3No. 87472-7 (Wiggins, J., dissenting) accusing Dobbs; the trial court concluded that the threats caused C.R.'s absence from trial; and the majority affirms without requiring evidence that Dobbs's threats caused the absence. The majority's reasoning is summarized by its assertion, "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." Majority at 2 (emphasis added). Although the majority later acknowledges that the doctrine of forfeiture by wrongdoing requires proof that the defendant "causes the witness to be unavailable," id. at 9, the majority fails to find that proof in this case. The clear, cogent, and convincing standard of evidence is deliberately difficult: it does not permit courts to assume a link between a defendant's wrongful behavior and a witness's absence where there may be none. To allow such a weak showing to become Washington's standard for "clear, cogent, and convincing" would swallow the rule of confrontation. Indeed, it is difficult to imagine a domestic violence case that would not involve threats or action designed to cause fear in the recipient. Accordingly, the State should at least be required to produce more evidence than
was presented here. Not only does the majority fail to find proof of causation, it finds little support in the leading cases, State v. Mason, 160 Wn.2d 910, 162 P.3d 396 (2007), and Giles 

### v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008). In both Mason and Giles, the evidence unequivocally established that the defendant prevented the witness from testifying-in both cases the defendant silenced the witnesses by murder. Even in the face of such clarity, we noted that "'a defendant's 4No. 87472-7 (Wiggins, J., dissenting) loss of the valued Sixth Amendment confrontation right constitutes a substantial deprivation."' Mason, 160 Wn.2d at 926 (quoting People 

### v. Geraci, 85 N.Y.2d 359, 367, 649 N.E.2d 817, 625 N.Y.S.2d 469 (1995)). This loss is a danger we refused to take lightly: although the defendant may find other avenues to challenge an incriminating statement's veracity, the Sixth Amendment enshrines the proposition that none approaches the effectiveness of cross-examination. See Crawford 

### v. Washington, 541 U.S. 36, 61-62, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ("The [Confrontation] Clause thus reflects ajudgment

... about how reliability can best be determined."). These cases additionally demonstrate that we are concerned about a bootstrapping phenomenon peculiar to this context sometimes called "reflexive forfeiture." Establishing forfeiture by wrongdoing requires a preliminary finding of fact that the defendant's wrongful conduct prevented the witness's testimony. Mason, 160 Wn.2d at 926. This, by itself, is not unusual: evidentiary questions frequently require a judge to make crucial pretrial findings pursuant to ER 104. /d. However, "the issue of forfeiture by wrongdoing is unique in that the trial judge must often rule on the ultimate question: [e.g.,] did the accused kill the alleged victim?" /d. (emphasis added). Indeed, that was the case here because the trial judge had to determine whether Dobbs had committed stalking, felony harassment, and intimidating a witness to decide whether those same acts had procured C.R.'s absence. In this way, establishing forfeiture sometimes requires presupposition of the very guilt the defendant sought to challenge through confrontation, thus ensnaring him or her in a circular trap. Any time a set of unconfronted, extrajudicial 5No. 87472-7 (Wiggins, J., dissenting) statements tend both to incriminate the defendant and establish grounds for forfeiture, that defendant could lose any opportunity to challenge their accuracy and truthfulness through cross-examination. To guard against these dangers, we held that to establish forfeiture, the prosecution must provide clear, cogent, and convincing evidence that the defendant intended to prevent the witness from testifying, and that the defendant's wrongful conduct actually caused the witness's nonappearance. /d. at 926-27. While acknowledging that conventional pretrial decisions are typically made on a preponderance of the evidence, we concluded that in this context, "the stakes are simply too high to be left to a mere preponderance standard." /d. 2 In short, our case law makes clear that "the right of confrontation should not be easily deemed forfeited by an accused." 

### /d. at 927. When we articulate the "clear, cogent, and convincing" standard, this court is commenting on the degree of confidence the trier of fact should have in the correctness of its factual conclusions, rather than requiring a certain level of statistical probability. In re Oet. ofBrooks, 145 Wn.2d 275, 297, 36 P.3d 1034 (2001 ), overruled on othergrounds by In re Oet. of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). This formulation properly reflects the fact that probability with respect to the standard of proof is a measure of the subjective belief of the trier of fact. We require a high degree of confidence under

2Although Washington's use of the clear, cogent, and convincing standard is more exacting than the preponderance of evidence required by a majority ofjurisdictions, see Mason, 160 Wn.2d at 926-27, this formulation of the forfeiture inquiry is not unique. The United States Court of Appeals for the Fourth Circuit, for instance, permits forfeiture of the confrontation right only where '"(1) the defendant engaged or acquiesced in wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable as a witness."' United States v. Dinkins, 691 F.3d 358, 383 (4th Cir. 2012) (quoting United State v. Gray, 405 F.3d 227, 241 (4th Cir. 2005)). 6No. 87472-7 (Wiggins, J., dissenting) the "clear, cogent, and convincing" standard, which falls just short of "beyond a reasonable doubt," the category reflecting the highest degree of certainty. While the evidence in this case is sufficient to prove by a preponderance of the evidence that Dobbs caused C.R.'s failure to appear, it fails to rise to the required level of clear, cogent, and convincing evidence. Nor does the majority derive support from State v. Fa!lentine, 149 Wn. App. 614, 618, 215 P.3d 945 (2009), in which witness Anthony Clark made statements to an investigator implicating the defendant, Fallentine, in an arson. Clark and Fallentine were both charged with the arson. Clark later pleaded guilty, but refused to testify against Fallentine at trial, despite being ordered by the trial judge to testify. Clark, who was apparently a juvenile, explained to his social worker that he did not want to '"have to look over [his] shoulder all the time"' and that Fallentine had threatened to '"put a hit"' on him if he testified. /d. at 622-23. Moreover, there was evidence that Clark had low self-esteem; was a '"follower"'; did not want to return to foster care under any circumstances; and was motivated to have an ongoing relationship with his sister and Fallentine, even though he was afraid of Fallentine. 

### /d. at 621. After Clark's first interview with the arson investigator, the social worker said Clark told her that Fallentine carried a firearm and was dangerous, Clark felt he could not get away from Fallentine, and he was worried what would happen if Fallentine found him. After Clark's second recorded interview with the investigator, he appeared "'frightened, hypervigilant and somewhat paranoid."' /d. at 621-22. The social worker found Clark on the floor in a fetal position, sobbing. /d. On this basis, the court was persuaded that Fallentine's threats were the reason Clark refused to
7No. 87472-7 (Wiggins, J., dissenting) appear in court. /d. at 623. The court of appeals affirmed, reasoning, "Viewed in the light most favorable to the State, the evidence shows Fallentine told Clark if Clark testified against him, he would be killed, and that threat actually prevented Clark from testifying." /d. (footnote omitted). Contrary to the majority, I would find that the evidence that Fallentine's threats caused Clark not to testify was much stronger than the evidence that Dobbs's threats caused C.R. not to testify. Here, the State adduced no direct evidence of causation and offered only circumstantial evidence. The circumstantial evidence showed a pattern of abuse giving rise to general fear but failed to connect that fear to C.R.'s decision not to testify. We simply do not know why C.R. failed to appear, and to conclude otherwise on these facts would permit a virtual presumption of forfeiture any time a witness fails to appear after a defendant's threatening or violent behavior. The majority rightly sympathizes with the injustice inherent in domestic violence situations and rightly seeks to protect C.R. and others from Dobbs.

Intimate partner abuse is endemic in this State: nearly one in five women experience injury from their partner and almost one-half of all female homicide victims perish at the hands of their current or former partner. LILLIAN BENSELY, WASH. STATE DEP'T OF HEALTH, HEALTH OF WASHINGTON: DOMESTIC VIOLENCE (2004) (updated 2013). These issues must be taken seriously. However, we cannot allow a difficult case to vitiate this court's role as the guardian guarantor of constitutional protections. The majority eviscerates the constitutional rights of many in order to punish one, building bad law on bad facts.8No. 87472-7 (Wiggins, J., dissenting) II. The erroneous admission of C.R.'s unconfronted testimony was not harmless beyond a reasonable doubt. Because I would find a violation ofthe confrontation clause, I analyze whether the conviction should be reversed due to the error, or whether the error was harmless, in which case the conviction may stand. A violation of the confrontation clause at trial is harmless only if the State can show '"beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."' State v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 

### L. Ed. 2d 705 (1967)). By contrast, if the conviction is nonetheless supported by "'overwhelming untainted evidence,"' we deem the confrontation clause error harmless. Mason, 160 Wn.2d at 927 (quoting State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005)). Here, I would find that the trial court's admission of C.R.'s statements was not harmless beyond a reasonable doubt with respect to Dobbs's convictions for stalking, felony harassment, or intimidating a witness. Each of these convictions was heavily supported by C.R.'s unconfronted testimony. In both of her sworn written statements to police, C.R. complained that Dobbs had been making death threats and harassing her for two weeks. This evidence would carry substantial weight with a trier of fact supporting the charges of stalking and felony harassment. And C.R. identified a threatening voice mail from a man she identified as Dobbs urging her not to testify-evidence supporting the intimidating a witness charge. Witness James Applebury's untainted testimony may have helped corroborate some of these

9No. 87472-7 (Wiggins, J., dissenting) statements from C.R. but falls short of providing overwhelming independent support for these three convictions. Dobbs's conviction for drive-by shooting presents a closer question, but here too I am unable to conclude, beyond a reasonable doubt, that C.R.'s statements did not at least contribute to the verdict. Applebury's testimony might, by itself, have been sufficient to establish the conviction. Applebury testified that he saw a car he recognized as Dobbs's pull into the alley and then heard and saw gunshots coming from the alley. This occurred, according to Applebury, almost immediately after he saw someone he believed was Dobbs leaving the vicinity of C.R.'s apartment. And a trajectory analysis of two nearby bullet holes corroborated his account. However, C.R.'s sworn statement from November 10 identified Dobbs as the shooter even more unambiguously: "he got angry & shot 2x at my garage where there is [sic] 2 bullet holes

...." Pl.'s Ex. 37. And her earlier sworn statement on November 7 relayed his previous threats to shoot her. I cannot conclude, beyond a reasonable doubt, that the trier of fact would have found Dobbs guilty of drive-by shooting in the absence of C.R.'s unconfronted statements. By contrast, the admission of C.R.'s statements was harmless beyond a reasonable doubt with respect to Dobbs's convictions for unlawful possession of a firearm and obstruction of a law enforcement officer. The conviction for unlawful possession of a firearm required the State to prove both that Dobbs had a previous conviction for a serious offense and that he was subsequently in possession of a firearm. See RCW 9.41.040(1 )(a). Dobbs has such a previous conviction (attempted robbery in the first degree), and Applebury testified that he directly observed Dobbs 10No. 87472-7 (Wiggins, J., dissenting) with a handgun on the evening of November 10. Finally, Dobbs's conviction for obstructing a law enforcement officer is not based on C.R.'s statements at all, but rather on Officer Nicholas Woodard's account that Dobbs fled after being ordered to halt. When evidence admitted at trial is later found to violate the confrontation clause, remand for retrial is the appropriate remedy. Jasper, 174 Wn.2d at 120. Therefore, because C.R.'s unconfronted statements may have contributed to them, Dobbs's convictions for stalking, felony harassment, intimidating a witness, and drive-by shooting should be reversed and retried. To conclude, a defendant's Sixth Amendment confrontation right is forfeited only upon clear, cogent, and convincing evidence that (1) the defendant acted with specific intent to procure the witness's absence and (2) the defendant's wrongful conduct is the actual cause of that witness's absence. I would hold that Dobbs did not forfeit his right to confront C.R. C.R.'s unconfronted, extrajudicial statements to police were therefore admitted in violation of Dobbs's Sixth Amendment rights. This error was of a constitutional dimension, and I cannot conclude that it was harmless beyond a reasonable doubt. Thus, I would reverse the Court of Appeals and remand for retrial on the charges of stalking, felony harassment, intimidating a witness, and drive-by shooting.

11No. 87472-7 (Wiggins, J., dissenting) I dissent.



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