A Tacoma cop says that when he arrived at a woman's home after her parents called, concerned she might be in the house with her


Supremes Say Fear of Violence Counts in Court


A Tacoma cop says that when he arrived at a woman's home after her parents called, concerned she might be in the house with her violent ex-boyfriend, Kha Magers, "her demeanor [indicated to me] something was terribly wrong." The cop asked if Magers was around; she said no. Then he asked her to step outside. Magers was inside, she told the officer, then begged him not to say she'd told, saying Magers would hurt her.

The woman later recanted her testimony, saying Magers was in the house with her permission. She added that despite his prior assault convictions, an earlier statement about him once holding a sword to her neck and threatening to decapitate her, and a restraining order in effect at the time of the Dec. 2003 incident, she lied to police and her family when saying Magers made her fear for her life.

Magers first statements to police and later recanting were all introduced at trial. Magers history of violence was also brought in to convince the jury that fear for her safety caused the woman to recant her statements to police in December. Magers was convicted, the three strikes rule went into effect, and he was given a life sentence.

Magers appealed and the court sided with him finding that his history was improperly introduced in order to raise questions about his ex-girlfriend's decision to recant. The State Supreme Court ruled six to three that the evidence was properly introduced to show the woman's fear of Magers even though her testimony had changed. Writing for the majority, Gerry Alexander opined:

The State, therefore, bears the burden of proving every element of second degree assault, including the element of assault which is defined as the "reasonable fear of bodily injury." Consequently, the State properly presented evidence of [the victim's] "reasonable fear of bodily injury" to prove the element of assault as defined in the jury instructions. Therefore, we conclude that evidence of Magers' prior bad acts, including the acts leading to his arrest for domestic violence and that he had been in trouble for fighting, was properly admitted to demonstrate [the victim's] "reasonable fear of bodily injury."

Justice Barbara Madsen wrote a concurring opinion saying that the victim's frame of mind wasn't an essential part of the case, but that Magers' history was still an important part of proving assault to show that he might cause any reasonable person to fear for their safety.

Charles Johnson wrote for the dissenters saying that bringing in Magers' prior convictions and complaints led to a conviction by character, not the facts of the Dec. 2003 incident.

We have long warned of the potential risk this type of evidence has in prejudicing the defendant and to be aware of situations "where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it."
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