State Of Washington, Respondent V. Curtis Lee Hamilton, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	) 	No. 67667-9-1
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GROSSE, 	J. 	- 	When 	a 	party 	introduces 	evidence 	that 	would 	be
inadmissible if offered by the opposing party, that party opens the door to the
explanation or contradiction of that evidence. 	Here, Curtis Hamilton repeatedly
testified as to the potential prison term he faced if convicted of the crime with
which 	he was charged, despite the trial court's ruling that such evidence is
inadmissible. 	By his testimony, Hamilton opened the door to the admission of
evidence of his prior convictions. 	Hamilton also put his character at issue by his
own testimony, again opening the door to the admission of evidence of his prior
convictions. 	The trial court did not abuse its discretion in allowing this evidence.
We affirm Hamilton's conviction.
FACTS
Curtis 	Hamilton 	(Hamilton) was 	convicted 	of felony violation 	of a no-
contact order prohibiting him from contacting his former wife, Amber Hamilton
(Amber). 	The conviction arose out of an incident that occurred in November
2010. 	At that time, Amber's friend Dena Carter was living in Amber's house.
According 	to 	Hamilton, 	he 	previously 	discovered 	that 	Carter 	was 	using

No. 67667-9-1/2
methamphetamine 	and 	selling 	drugs 	out 	of 	Amber's 	house. 	He 	became
concerned about his and Amber's children who lived in Amber's house and told
Carter to leave. 	Because he ordered her out of the house, Hamilton testified,
Carter was angry with him.
Early on November 6, 2010, Carter heard Hamilton "ranting and raving"
and calling Amber "every name in the book." 	Amber ran into the bathroom and
locked the door. 	Carter saw Hamilton go to the bathroom door and heard him
either hit or kick the door. 	Carter told Hamilton to get out of the house. 	Hamilton
called Carter names. 	The two were "chest to chest," and Hamilton hit Carter on
the chin with his forearm and threw a glass full of water at her, jamming her
finger. 	Carter again told Hamilton to get out of the house, and this time, Hamilton
shoved Carter aside and left.
Amber and Carter locked the door to the house after Hamilton left, and
Carter called 911. 	At trial, Carter testified that Hamilton was living in Amber's
house at the time of the incident. 	Rather than telling the 911 	operator that
Hamilton lived in the house, however, Carter told the operator that Hamilton "just
showed up." 	She testified that she lied because she was afraid Child Protective
Services would remove Amber's children if it became known that Hamilton was
living in Amber's house in violation of the protective order. 	Police responded to
the 911 call and took statements from Amber and Carter.
The State charged Hamilton with one count of first degree burglary and
two counts of domestic violence felony violation of a court order. 	The State
discovered 	that 	Hamilton was 	actually 	living 	at Amber's 	house, 	and 	at the
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No. 67667-9-1/3
beginning of trial, dismissed the first degree burglary count and added a count of
fourth degree assault. 	The State subsequently amended the charge to include
only two counts-domestic violence felony violation of a court order and fourth
degree assault.
At trial, Hamilton testified, contrary to Carter's testimony, that he did not
live in Amber's 	house at the time of the incident. 	The 	State introduced a
recording of a jail phone conversation in which Hamilton told his sister that he did
live in Amber's house. 	Hamilton explained that he knew that jail phone calls
were recorded and that the prosecutor would listen to the recording, so he lied
and said he lived at Amber's house to avoid a burglary charge. 	He testified that
he would rather be found guilty of violating a protective order than of first degree
burglary.
The State played a recording of another jail phone conversation in which
Hamilton told Amber's mother to tell Amber's sister that he needed an alibi for
November 6 and that he intended to say he was helping the sister babysit a child
named Haley.
The trial court allowed the State to introduce evidence of Hamilton's prior
convictions, 	including 	evidence 	of 	convictions 	the 	court 	had 	earlier 	ruled
inadmissible, because the court determined that Hamilton opened the door to the
introduction of that evidence.
The jury found Hamilton guilty of felony violation of a court order and not
guilty of fourth degree assault. 	Hamilton appeals.
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No. 67667-9-1/4
ANALYSIS
The sole issue on appeal is whether the trial court erred in concluding that
Hamilton opened the door to the admission of evidence of his prior convictions.
When a party introduces evidence that would be inadmissible if offered by the
opposing party, that party opens the door to the explanation or contradiction of
that evidence. 1 "[A] trial 	court 	has discretion to admit evidence that might
otherwise be inadmissible if the defendant opens the door to [that] evidence."2
We review a trial court's determination that a party has opened the door for
abuse of discretion.3 Here, we find no abuse of discretion in the trial court's
decision to admit evidence of Hamilton's prior convictions.
Prior 	to 	trial, 	the 	court 	granted 	the 	State's 	motion 	to 	prohibit 	the
introduction of evidence of the penalty Hamilton faced if convicted as charged.
The court also allowed the State to 	introduce Hamilton's prior conviction 	of
second degree robbery. 	The parties also stipulated that Hamilton had at least
two prior convictions for violating the terms of the protective order. 	Hamilton has
a number of other prior convictions as well that, 	under the court's order on
motions in limine, were not admissible.
After the trial was underway and before Hamilton took the stand, the State
renoted its motion in limine "for disclosure of any 404(b), 609, 608, and any kind
of character evidence which defense may be offering through the defendant
about any other parties, particularly Dena potentially, 	Dena Carter, or Amber
1 State v. Ortega, 134 Wn. App. 617,626, 142 P.3d 175 (2006).
2 State v. Warren, 134 Wn. App. 44, 65, 138 P.3d 1081 (2006).
3 Ortega, 134 Wn. App. at 626.
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No. 67667-9-1/ 5
Hamilton." The court noted that evidence of Carter's drug use had already been
introduced, but that, as to other matters, the order on the motions in limine was
still in place.
Notwithstanding 	the 	court's 	evidentiary 	rulings, 	Hamilton 	repeatedly
referred to the punishment he would receive if convicted of first degree burglary
or violation of the no-contact order. 	On direct examination, defense counsel
asked Hamilton, "What can you tell us about the telephone call that we listened
to yesterday?" 	He responded, "That was stupid on my part. 	I was desperate. 	I
was terrified of possibly doing 19 years, which is equivalent to second degree
murder charge." The State objected, and the trial court stated:
Hold on just a second. 	The jury is not concerned, should not be
concerned with any punishment that may follow conviction. 	There
is an order that the length of incarceration from any crime is not to
be mentioned. You will disregard it.
On cross-examination, the State asked Hamilton, "So again, when you
made the phone call that the jury all listened to the other day, what had you
personally read about this case? 	What evidence had you had an opportunity to
review?" 	Hamilton responded, "I researched the first degree burglary with the
two counts of violation of no contact order and assault and I added up the time,
which is equivalent to a second degree murder charge."
Also, when asked on cross-examination what he meant by saying during
his telephone call that he was living at Amber's house, Hamilton testified:
A 	As I said before, that was a mistake on my part. 	I was
scared to death about you trying to give me 200 something months
based on all the lies, and you knew they were lies and yet you still -
- you're still trying to put me in prison, and you know this woman
[Carter] lied five times before she even took the stand, and you still
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No. 67667-9-1/6
put her on the stand against me. 	You want me to go to prison that
bad, you're going to put a girl on the stand that lied to three police
officers, 911 	call, an investigator in an interview; you know she
perjured herself all those times, yet you still want to put her on the
stand. 	And the reason why she told that lie, because she didn't
want my kids to get taken away, yet she's doing meth out of the
house; she's got needles in the house; they're selling drugs in the
presence--
The State asked Hamilton why he did not simply tell his sister during the
jail telephone call that he was not at Amber's house on the night of the incident.
Hamilton responded:
A. Like I said before, on the phone call, I did that because I
was scared to death of you convicting me of first degree burglary,
that I didn't do it.
Q. 	But--
A. 	I didn't want -- hold on. 	You're asking me a question.
Let me answer that. 	I did that, I said I lived there so you couldn't
charge me with first degree burglary. 	I didn't live there. 	I was
scared. 	You know what, I'm not quite sure you wouldn't have done
the same thing you're trying to give me [sic].
THE COURT: 	Hold on just a second.
[HAMIL TON]: 	19 years.
THE COURT: 	Stop. 	You've answered the question.
[HAMILTON]: 	I did that because I was scared. 	I said that
because I was scared to death of going to prison. 	I'm 47 years old.
By the time 	I got out, 	I'd be almost 70 based on 	lies. 	I was
desperate ....
What's happening to me right now is [Carter's) so mad at me
for throwing her out, even the police testified that her demeanor she
was angry, not emotionally disturbed, not crying, I mean she was
mad. 	I told her to get out of the pad.
Hamilton again mentioned the prison term 	he faced if convicted when
asked again to explain his jail telephone call:
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No. 67667-9-1/7
A. . . . 	My bad on my part. 	I apologize. 	But hey, man, you
guys swear by them phone calls, and I was desperate, and I knew
you were going to listen to that phone call. 	I knew you were going
to listen to it. 	That's why I said, hey, I was living there, man. 	But I
wasn't living there. 	I would rather face a charge of a no contact
order violation than pertaining, you know, for 60 months, but then
instead of 200 and something months. 	Wouldn't you, honestly? I'm
asking you a question now. 	If you were in my shoes and someone
was trying to put you in prison for damn near the rest of your life
based on lies --
Q. 	What is that based on? 	You keep talking about so much
prison time. Why are you facing so much time?
A. 	If you research, I'm sure you know the law, any time first
degree 	burglary 	is 	involved 	in 	a 	crime, 	everything 	is 	run
consecutive. 	I did a lot of research on it.
[DEFENSE COUNSEL): 	Your Honor, I'm going to object.
This is nonresponsive.
THE COURT: 	It is nonresponsive, 	but he is going way
beyond the court orders. And he is introducing items that he should
well know are not admissible by my orders, and I told him that that
can open up other things. 	So him having opened up a lot of things
that were inadmissible, I don't think, your objections are well taken.
Hamilton continued:
I don't know if I'm correct or not, but I'm not an attorney, but I mean
my chances of looking at 60 months compared to what you were
trying to give me is hey, man, I made a mistake; you know, like I
said, I was scared. 	You know, you're trying to send me to prison
for a ungodly amount of time for a lady that clearly lied to not only
to 911 	call but to three officers, and I mean the investigator and
detective.
At this point in cross-examination, the State questioned Hamilton about
the number of points he would receive for sentencing purposes due to his prior
convictions. 	Defense counsel objected, but the court stated: "Counsel, it would
be an improper question, had your client not given improper answers, but he
gave improper answers, which opens the door to otherwise improper questions."
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No. 67667-9-1/8
The 	court 	decided 	that 	because 	of 	Hamilton's 	testimony 	as 	to 	evidence
previously ruled inadmissible, all of his prior felony convictions were admissible.4
The court also determined that by suggesting that he was the "good guy"
compared to Carter, whom he claimed was a drug user, and Amber, whom he
claimed allowed drug use and drug dealing around the children, Hamilton also
put 	his 	character 	at 	issue.5 Accordingly, 	the 	court 	determined 	that,
notwithstanding ER 404(b), Hamilton's prior bad acts were admissible.
We find 	no abuse 	of discretion 	in 	the trial 	court's determination that
Hamilton opened the door to the 	introduction of all of his prior convictions.
Hamilton repeatedly brought up the prison term he would face if convicted of first
degree burglary and/or felony violation of a no-contact order. 	He did so after
numerous warnings from the trial court not do to so. 	He repeatedly accused the
4 The court stated:
THE COURT: 	Counsel, he has taken it way beyond crimes
of dishonesty. 	His testimony to the jury is that the State is being
unfair to him and draconian by suggesting that he could serve a lot
of time unfairly. 	I've told him over and over again that the amount
of time is not admissible and nevertheless, he keeps talking about
it.
[DEFENSE COUNSEL]: 	I understand.
THE COURT: 	So all his crimes, all his felony crimes, are
now admissible, all of them.
[DEFENSE COUNSEL]: 	Your Honor--
THE COURT: 	The issue --the issue of punishment is not for
the jury. His crimes would not be admissible but for the fact that he
keeps 	telling 	the 	jury that the 	prosecutor is 	on 	some 	kind 	of
vendetta to give him an enormous amount of time in prison.
5 The 	court 	stated: 	"[H]e's 	placed 	his 	own 	character 	into 	issue. 	He 	has
repeatedly suggested that he was the one keeping that family together, that
people tearing the family apart was his ex-wife and Dena [Carter], and that he
was some type of person on the outskirts trying to be the good guy with the good
character holding it together and they're the ones with the bad character. 	I think
by inference he has squarely put his character at issue."
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No. 67667-9-1/9
State of trying to unfairly punish him based on Carter's lies. 	He accused Carter
of using methamphetamine, selling drugs out of Amber's house with Amber's
knowledge and consent, and lying in retaliation for his ordering her out of the
house, 	and 	claimed 	he 	acted 	out 	of concern 	for 	his 	children. 	Hamilton's
testimony opened the door to the introduction of his prior convictions.
Affirmed.
WE CONCUR:
(j
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