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State v. O'Connor12/22/2003
Concurring: Mary Kay Becker, Susan R. Agid
OPINION PUBLISHED IN PART
Courtney O'Connor appeals his conviction for a Class C felony, domestic violence malicious mischief in the second degree, arising from a tire-slashing incident. He contends that the trial court erred by denying a defense motion to exclude compromise evidence under ER 408, thereby permitting the State to present evidence that O'Connor paid the victim $800 to assist her in replacing her tires, and to argue to the jury that this payment proved that it was O'Connor who slashed the tires. Whether ER 408's prohibition against admitting evidence of compromise of civil claims applies at criminal trials based on the same conduct is an issue of considerable debate around the country, and one that has not heretofore been addressed by Washington appellate courts. Based on the same grounds of public policy favoring the compromise of civil claims that underlie ER 408, i.e., encouraging non-litigious settlement of disputes and reducing courtroom congestion, our Legislature has approved the compromise of certain misdemeanor offenses as between the offender and victim, but has expressly prohibited the compromise of felonies, and of misdemeanors that constitute domestic violence. Accordingly, the offense here at issue was not subject to compromise because it was both a felony and a domestic violence offense. Comment 408 suggests that the exclusionary rules contained in Title 4 of the Rules of Evidence do not apply in the face of contrary statutory provisions. We conclude that the policies favoring settlement of civil claims that underlie ER 408 do not require exclusion of compromise evidence at trials for criminal offenses that are not themselves subject to compromise. Accordingly, we affirm the trial court's evidentiary ruling.
FACTS
After Rachel Bologna and Courtney James O'Connor had been dating for a few months, Bologna told O'Connor that she could not see him for a few days because she had to study for a graduate school entry exam she planned to take on November 11, 2001. According to Bologna's subsequent testimony at trial, on November 7, 2001, O'Connor called, asking to see her. Bologna refused. Later that night, sometime between 11 p.m. and 3 a.m., O'Connor called again, insisting that she allow him to come to her house to retrieve a compass he had loaned to her. Bologna agreed to place the compass on the mailbox outside her house so that O'Connor could pick it up.
As she opened the door to put the compass on the mailbox, Bologna saw O'Connor approaching the house. She went back into the house and closed the door. Bologna saw O'Connor in her front yard and near her car, which was parked on the curb in front of the house, but she did not see him do anything suspicious. A few minutes later, O'Connor called again and said, 'I just don't think it's working out between us.' Bologna agreed and told him that she hoped he would not call her anymore.
On the following afternoon when she next went out of doors, Bologna found that all four tires on her car had been slashed. She called O'Connor and told him that if he did not 'take care of this' she would call the police. O'Connor denied slashing the tires, told her not to call and bother him again, and said, 'Go ahead and call the police.' Bologna called the police, and subsequently filed an insurance claim.
About a week after the incident, O'Connor came to Bologna's house because he 'had something for her.' He gave her $800 and 'apologized for everything' but did not admit to slashing the tires. Bologna eventually collected an additional $500 from her insurance company. Her total cost for replacing t
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