State Of Washington, Res. v. Antonnio Ray Thomas, App. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON o
STATE OF WASHINGTON,
CD m
No. 69835-4-1 c >
Respondent,
DIVISION ONE

O
TONY RAY THOMAS, UNPUBLISHED OPINION
O
AKA ANTONNIO RAY THOMAS,
FILED: October 6, 2014
Appellant.
Becker, J. — This opinion affirms appellant Antonio Thomas' conviction
for assault in the second degree. We conclude Thomas received a fair and
public trial.
The victim of the assault was Vivian Heller, the grandmother of Thomas'
three children and the mother of his former partner, Shant'e Spears.
In late April 2012, Heller, her boyfriend Raymond Jennings, and Thomas'
two older children were in a serious car accident on a road trip through California.
Spears had allowed the children to go on this road trip but specifically forbade
Jennings from driving the car. Spears did not tell Thomas about the trip or ask
his permission. Jennings was driving when the car went over a cliff and was
caught by two trees. The children incurred injuries in the accident. Heller called
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Spears to tell her about the accident. Spears called Thomas. Spears and
Thomas flew down to California to pick up their children.
On May 28, 2012, Heller and Jennings attended a Memorial Day party at a
motorcycle club in the Georgetown neighborhood. Thomas was also there.
Jennings and Thomas were both members of the club. Thomas walked into a
back room with Heller. Heller emerged with a bloodied face. Jennings found her
and took her to the hospital. Someone at the hospital called the police. Seattle
police officer Ryan Keith responded around 1:00 a.m. that night and observed
that Heller had swelling in her face and a bloody and broken nose. He
photographed Heller's injuries and took statements from Heller, Jennings, and a
woman in the hospital room. Heller told the officer that Thomas had backed her
up into a large barrel and the club's fence and punched her repeatedly in the face
with his closed fist.
Detective Adam Thorp was the investigating officer. Based on witness
statements and Officer Keith's photos, Thorp concluded he had probable cause
to arrest Thomas. He went to Thomas' residence to arrest him on June 4, 2012,
but Thomas was not there. Thorp put out a bulletin to other officers indicating
probable cause to arrest Thomas. As a result, another officer contacted Thomas
and arranged for him to come to the police station.
Thomas was charged and convicted of assault in the second degree. This
appeal followed.
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Probable Cause Testimony
Thomas contends the trial court erred in denying his motion for mistrial
made after Detective Thorp gave testimony about his belief that he had probable
cause to arrest Thomas.
An important fact bearing on this issue is that Detective Thorp was called
as a defense witness. On direct examination, defense counsel introduced the
topic of probable cause by eliciting the detective's testimony that he believed he
had probable cause to arrest Thomas when he went to his residence on June 4.
Q. Now, at the time you went out on June 4th to the residence
where Mr. Thomas was living, at that time you believed you had
probable cause to arrest; am I wrong or right about that?
A. That is correct, I believed I had probable cause.
Q. All right. Now, in the meantime after that date, you did not
contact this person?
A. Correct.
Q. Now, Mr. Thomas was arrested on what date?
A. He was arrested by a different officer, as a matter of fact, on—
oh, gosh, I believe it was June 7th. Yes.
Q. And that other officer was who?
A. Officer Howard.
Q. All right. And that was it per your instructions?
A. Yes, I had completed a bulletin for Mr. Thomas. Officer Howard
had seen that bulletin and that's when he contacted me and
stated he knew the building manager and he set up a meeting
with Mr. Thomas to show up at the North Precinct.
Q. And what was the purpose of his coming to the North Precinct?
A. To obtain a statement from him, get his side of the story and
make a determination from there what his future would be,
whether he'd be placed in custody or not.
Q. But you had already decided there was probable cause to
arrest?
A. That's correct.
On cross-examination, the prosecutor asked Thorp to clarify the basis for
his finding of probable cause:
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Q. Now, when you had established that—you indicated that you
had PC [probable cause], but for those of us less familiar with
what that means, what does PC mean?
A. PC is probable cause, and that is essentially authority to arrest
a person. I believe criminal activity has occurred and I can
arrest the suspect who conducted that criminal activity.
Q. What is—in this case what was it that led you to believe that
you had probable cause to arrest Mr. Thomas?
A. It was a combination of Ms. Heller's statement both to the initial
responding officer, her follow-up statement to me, and the
photographic evidence. They all supported probable cause for
assault.
Q. Now, in order to make that determination in your training and
experience, does a detective necessarily—or an officer
necessarily had to have talked to a suspect in order to speak
with them prior to making a probable cause determination?
A. No, not at all.
Q. And can you tell us why, or what do you mean by that?
A. The facts can speak for themselves. Again, the photographs
are facts. That shows that she was severely assaulted, and her
statement—everyone else's statement that spoke with the
responding officer, they were all consistent in naming Mr.
Thomas as the individual who gave her those injuries. There
was no—
At this point, defense counsel objected. The trial court sustained the
objection and stated that probable cause is not the standard at trial. However,
when Thomas later moved for a mistrial, the trial court denied the motion.
Thomas contends the motion should have been granted because the detective's
testimony about probable cause was an improper opinion on guilt.
The standard of review for denial of a motion for a mistrial is abuse of
discretion. State v. Perez-Valdez. 172 Wash. 2d 808, 858, 265 P.3d 853 (2011). A
mistrial should be granted only when the defendant has been so prejudiced that
nothing short of a new trial can ensure that the defendant will be tried fairly.
State v. Weber, 99 Wash. 2d 158, 165, 659 P.2d 1102 (1983).
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An accused is guaranteed the right to a fair trial by an impartial jury. U.S.
Const, amend. VI; Wash. Const, art. I, §§ 3, 21, 22. No witness may offer
testimony in the form of an opinion regarding the guilt of the defendant. City of
Seattle v. Heatlev, 70 Wash. App. 573, 577, 854 P.2d 658 (1993), review denied.
123 Wash. 2d 1011 (1994). Washington courts do not take an expansive view of
claims that testimony constitutes an opinion of guilt. Heatlev, 70 Wash. App. at
579.
We do not regard the detective's testimony as an improper opinion on
guilt. Defense counsel opened up the subject of probable cause for strategic
reasons. This opened the door for the State on cross-examination to clarify the
meaning of probable cause and give appropriate context to the detective's
testimony elicited by defense counsel on direct examination. See State v.
Gefeller, 76 Wash. 2d 449, 455-56, 458 P.2d 17 (1969). This was a different and far
less prejudicial exploration of the meaning of probable cause than what occurred
in State v. Stith, 71 Wash. App. 14, 22-23, 856 P.2d 415 (1993), a case Thomas
has submitted as supplemental authority. There, defense counsel made an
argument suggesting that police officers had fabricated their testimony, and the
prosecutor responded by arguing that "'the question of probable cause is
something the judge has already determined before the case came before you
today.'" Stith, 71 Wash. App. at 17. Here, the officer merely gave straightforward
answers to questions about police procedure.
Also cited by Thomas as supplemental authority is State v. Jones, 144
Wash. App. 284, 183 P.3d 307 (2008). There, the court stated that prosecutorial
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misconduct would not be excused on the theory that defense counsel had
opened the door to it. Jones, 144 Wash. App. at 295. Thomas argues that here, as
in Jones, the State is improperly exploiting the "open door" rule. We disagree.
What occurred here is not comparable to what happened in Jones. In Jones,
defense counsel cross-examined an officer and elicited his testimony that the
confidential informant had dropped out of sight. The State "seized the
opportunity" to elicit "inadmissible and inflammatory hearsay evidence"—the
officer's testimony that the informant was too frightened to testify even though he
had previously appeared excited to do so. Jones, 144 Wash. App. at 295.
Here, unlike in Jones, the prosecutor's questions to the detective were
within the scope of the colloquy between defense counsel and the detective, and
the answers were not inflammatory. We reject Thomas' argument that the
prosecutor had a duty to object when defense counsel introduced the irrelevant
topic of probable cause. As the State points out, raising an objection carries the
risk that the jury will believe the objecting party is trying to hide something. In
light of the curative remarks made by the trial judge, there is no reason to believe
the jury was misled into thinking that the detective's belief in probable cause
satisfied the State's burden of proof.
Presenting testimony about probable cause is indeed an irregularity, and
the trial court rightly chastised both counsel for their respective parts in it.
Nevertheless, when viewed against the backdrop of all the evidence, the
irregularity did not so prejudice the jury as to deny Thomas his right to a fair trial.
No. 69835-4-1/7
Gun Testimony
Thomas again moved for a mistrial, unsuccessfully, when Jennings
testified that Thomas "had a gun," despite a pretrial ruling barring evidence that
Thomas had or displayed a gun at the club on the night in question. Thomas
argues on appeal that the reference to a gun was a serious irregularity that
demanded a mistrial ruling.
On direct examination, the prosecutor asked Jennings how he reacted
when he found Heller at the club with obvious injuries after her encounter with
Thomas. Jennings responded that he wanted to "jump on him," but then he
remembered that Thomas "had a gun":
Q. So what did you do, what did you do when you saw this?
A. ... I didn't know what happened to her. I run to the back back
there, at the back door. Mr. Thomas was still standing there in
the back back there, and I run back there because I was going to
jump on him. But I remembered he had a gun, so I figured that's
what he hit her with was the gun.
Defense counsel immediately objected. The trial court sustained the objection,
struck the answer, and instructed the jurors to disregard. Once the jury was
excused, defense counsel moved for a mistrial. The trial court denied the
motion.
The question is whether, in light of all the evidence, Jennings' testimony
so prejudiced the jury that Thomas was denied a fair trial. We conclude it did
not. The fact that a person owns a gun is not necessarily prejudicial. The trial
court immediately struck Jennings' answer and instructed the jury to disregard it.
The court emphasized to the jury that there was no evidence that Thomas
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possessed a gun during this incident. Heller did not mention a gun in her
testimony about being punched by Thomas in the back room.
Thomas relies on State v. Freeburq. 105 Wash. App. 492, 20 P.3d 984
(2001). This case is not like Freeburg. There, evidence of the defendant's
possession of a weapon at the time of arrest was purposefully admitted to show
flight and consciousness of guilt. No limiting instruction was given. Here,
Jennings' speculation that Thomas might have had a gun with him was
immediately struck from the record, and the court gave a curative instruction.
The trial court did not abuse its discretion in denying defense counsel's motion
for mistrial.
Exclusion of Spears' Testimony
Thomas contends that the trial court improperly curtailed his right to
present a defense by excluding testimony suggesting that it was Heller who
committed assault on the night in question.
On December 18, 2012, the last day of trial testimony, Spears was on the
witness stand. During a break, Spears disclosed to defense counsel that she
had received text messages from Heller a day or two after the incident, in which
Heller said that she herself had punched Thomas on the night of the incident,
one punch for each grandchild. Thomas wanted to use Spears' testimony about
the text messages to impeach Heller who, in her earlier testimony, did not
mention punching Thomas. The testimony was excluded because it was
disclosed late. Thomas made an offer of proof:
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No. 69835-4-1/9
This was late-breaking evidence.... My understanding ... is that
Ms. Spears received a text message from her mother a day or two
after the incident itself. She would have testified that Ms. Heller
was calm in the beginning and then she became more and more
upset, her behavior escalated, and then she would come in and
say—and then she got loud. And then she would have testified that
with every punch she said this is for [J.S.], the punch against Mr.
Thomas, this is for [W.R.], this is for [J.M.], and this was out of Ms.
Heller's own mouth. It would be of course impeachment evidence.
I want to make sure I cover it all.
. . . the court barred me from bringing that evidence out.
Under both the United States and Washington Constitutions, an accused
has the right to a meaningful opportunity to present a complete defense. U.S.
Const, amends. 6, 14; Wash. Const, art. I, § 22. These provisions require that
an accused receive the opportunity to present his version of the facts to the jury.
State v. Jones. 168 Wash. 2d 713, 720-21, 230 P.3d 576 (2010).
This case is not like Jones or State v. Maupin. 128 Wash. 2d 918, 913 P.2d
808 (1996), where the trial courts excluded the only evidence of the defendants'
defense theories and in each case the evidence had high probative value. Here,
another witness had already testified that he heard Heller admit to attacking
Thomas when Thomas received a phone call from Heller, which he put on
speakerphone. And Spears' testimony that Heller's text messages admitted
punching Thomas would have only impeached Heller's testimony that she did not
hit Thomas. Because it would not have impeached her testimony that Thomas
hit her, it had low probative value for the defense. Thomas fails to establish that
the exclusion of the last-minute testimony deprived him of the opportunity to offer
a meaningful defense.
No. 69835-4-1/10
Admission of Photographs
Thomas argues that the court abused its discretion by admitting prejudicial
photographs of Heller. Our review is for an abuse of discretion. State v.
Crenshaw. 98 Wash. 2d 789, 806, 659 P.2d 488 (1983).
Accurate photographic representations are admissible, even ifgruesome,
if their probative value outweighs their prejudicial effect. Crenshaw. 98 Wash. 2d at
806. The eight photos of Heller that were admitted were taken while she was
lying in a hospital bed. They show facial swelling, two breaks to her nose,
bleeding from her nose, and black eyes.
Thomas defended in part on the theory that Heller sustained the injuries
when she fell after attacking him. Heller has epilepsy, and Thomas suggested
she might have been having an epileptic seizure. The photos tended to refute
Thomas' theory and to support, instead, the State's assertion that the injuries
were caused by Thomas punching Heller repeatedly in the face. We find no
abuse of discretion.
Selection of Alternate Jurors
Thomas contends that the court violated his right to a public trial by
conducting the selection of alternate jurors in a manner that was not open to the
public.
On December 19, 2012, before instructions were given to the jury and
closing arguments were presented, the trial court conducted a process for
deciding which two jurors would be designated as alternates. The record
contains the following description of the process:
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No. 69835-4-1/11
(JURY NOT PRESENT IN THE COURTROOM.)
THE COURT: We're going on the record. We made it on
the record. We just did a random selection of little pieces of paper
and the defense picked Juror No. 3 as the first alternate and the
State picked Juror No. 4 as the second alternate. So they'll be
dismissed with instructions at the end of closing. There's only one
time I've ever had to call back an alternate, but you never know.[1]
A defendant's right to a public trial is guaranteed by the Sixth Amendment
to the United States Constitution and article I, section 22 of the Washington
Constitution. State v. Strode. 167 Wash. 2d 222, 225, 217 P.3d 310 (2009). To
protect the defendant's right to a public trial, a trial court must analyze and weigh
five factors before closing a portion of a criminal trial. State v. Bone-Club. 128
Wash. 2d 254, 258-59, 906 P.2d 325 (1995). Thomas contends the record shows
that "the drawing of alternate jurors was done during a court recess off the record
without a Bone-Club inquiry," thus establishing a court closure which requires
that his conviction be reversed and remanded for a new trial.
Thomas relies on State v. Jones. 175 Wash. App. 87, 303 P.3d 1084 (2013).
In Jones, the court indicated at the close of evidence that a court clerk would
randomly draw names of four jurors from a rotating cylinder to determine which
jurors would be alternatives. There was a court recess during the defense
closing arguments. The drawing occurred during the recess. The Jones court
concluded that the procedure did not occur in open court and that the off-the-
1 Report of Proceedings (Dec. 19, 2012) at 3.
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No. 69835-4-1/12
record selection by the court clerk lacked safeguards against manipulation and
chicanery:
Although we do not suggest that the alternate juror drawing
in this case was anything but random—and Jones does not appear
to argue otherwise—there is simply no way to tell how the drawing
was performed. The issue is not that the drawing in this case was
a result of manipulation or chicanery on the part of the court staff
member who performed the task, but that the drawing could have
been. Where such a drawing occurs during a court recess off the
record, the defendant and the public lack the assurance of a truly
random drawing that they would have if the drawing were
performed in open court on the record. This lack of assurance
raises serious questions regarding the overall fairness of the trial
and indicates that court personnel should be reminded of the
importance of their duties. Accordingly, we conclude that
considerations of logic "implicate the core values the public trial
right serves." fState v. lSublett. 176 Wn.2d [58,] 72[, 292 P.3d 715
(2012)].
Jones. 175 Wash. App. at 102. The court concluded that the defendant was
entitled to a new trial.
Here, unlike in Jones where the court clerk selected the alternates, the
record reflects that the random selection was done by the parties' attorneys
under the supervision of the judge. Although the jury was not present, the record
provides no basis to believe that the drawing of names did not occur in an open
courtroom where it could be witnessed by the public. Participation by counsel is
an additional safeguard against manipulation and chicanery. We conclude that
no closure occurred, a Bone-Club analysis was not required, and Thomas is not
entitled to a new trial.
Affirmed.
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No. 69835-4-1/13
WE CONCUR:
rf— - UaT"
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