State of Washington v. Alexander Donald J. Riendeau ( 2020 )

FILED
AUGUST 4, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36918-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ALEXANDER DONALD J. RIENDEAU, )
)
Appellant. )
PENNELL, C.J. — Alexander Riendeau appeals his conviction for witness
tampering. We affirm.
FACTS
Mr. Riendeau was arrested on suspicion of domestic violence against his
girlfriend, Correna Gibson. While in jail, Mr. Riendeau made three telephone calls to
Ms. Gibson. In those calls, Mr. Riendeau and Ms. Gibson discussed the assault, their
relationship, and financial matters. Mr. Riendeau also asked Ms. Gibson to help end the
case against him. To that end, he asked Ms. Gibson to speak to the prosecutor and the
victim advocate, and urged her not to cooperate with the investigation.
No. 36918-8-III
State v. Riendeau
Mr. Riendeau was charged with witness tampering as a result of the phone calls.
The case proceeded to a jury trial.
During jury selection, the trial court asked the venire if anyone had “an experience
with a similar or related type of case or incident, . . . whether it be a witness or an
accused?” Report of Proceedings (RP) (Apr. 15, 2019) at 47. Juror 18 volunteered that he
had:
PROSPECTIVE JUROR NO. 18: Yes. My—my wife—
THE COURT: Juror No. 18.
PROSPECTIVE JUROR NO. 18: —was diagnosed schizophrenic
several times and she became violent and destructive towards me and some
other people. She’s been released.
THE COURT: Would that experience or that relationship influence
your consideration of this case?
PROSPECTIVE JUROR NO. 18: I—I don't know how to answer that,
Your Honor. I’m not sure.
THE COURT: Do you think you’d be able to decide this case based
upon what’s presented to you in this courtroom and not on any of the history
between you and your wife or what she’s been through?
PROSPECTIVE JUROR NO. 18: Well, I guess I would have to know
the facts, like if violence is done by someone that was mentally ill or not. I—
THE COURT: All right. So whether or not you could consider this case
impartially would be dependent upon the facts that come out?
2
No. 36918-8-III
State v. Riendeau
PROSPECTIVE JUROR NO. 18: Right.
THE COURT: Okay. Thank you.
Id. at 47-48 (emphasis added).
Juror 18 did not raise his hand when the court asked the venire if they could not
follow the court’s instructions or if there was anything else that would affect their
impartiality. Nor did he speak out when the prosecutor asked the venire if anyone had
views that they held too strongly to set aside.
However, Juror 18 voiced additional concerns during the prosecutor’s questioning
about circumstantial evidence.
[Prosecutor]: —18.
PROSPECTIVE JUROR NO. 18: With my belief system, you got to
have at least two witnesses.
[Prosecutor]: Okay.
PROSPECTIVE JUROR NO. 18: And circumstantial evidence, it could
be nebulous.
[Prosecutor]: Okay.
PROSPECTIVE JUROR NO. 18: Manipulated in such a way as to
make someone look guilty and they’re really not. I—to me, it’s very iffy.
RP (Apr. 15, 2019) at 82. Neither the parties nor the court asked any additional questions
of Juror 18 on this topic or any other topic.
3
No. 36918-8-III
State v. Riendeau
After voir dire, the State moved to have Juror 18 dismissed for cause based on
actual bias. The trial court granted its motion over a defense objection. The court noted
Juror 18 had expressed he did not know if he could be impartial without knowing the
case’s facts. The court also noted Juror 18’s discomfort with circumstantial evidence and
need for two witnesses would run counter to the court’s instruction on the equality
between circumstantial and direct evidence.
Ms. Gibson testified for the State during the trial. Ms. Gibson repeatedly noted she
suffered from anxiety and had to be asked to slow down during her answers by the
prosecutor.
During her testimony, Ms. Gibson made three references to Mr. Riendeau’s
criminal history. The first came when the prosecutor asked Ms. Gibson whether she had
spoken with Mr. Riendeau after he had been booked into the jail:
[Prosecutor:] Okay. And did you have conversations with him while he
was in the jail?
[Ms. Gibson:] Conversations after he went to jail?
[Prosecutor:] Yes.
[Ms. Gibson:] He—yeah. We had a lot to discuss because we lived
together for eight months and we shared bills. So he was going to go away for
a long time because he has a record as we all know. And so he wasn’t trying—
[Prosecutor:] Okay.
4
No. 36918-8-III
State v. Riendeau
[Ms. Gibson:] —to go, you know, coerce me in any way or nothing. We
were dealing with what we were going to do with the car and the bills and the
house and how I was going to make it.
[Prosecutor:] Okay. Okay. Slow down. We’re doing [sic] to slow it
down.
[Ms. Gibson:] Sorry. Tell my brain that.
RP (Apr. 15, 2019) at 235 (emphasis added). The second came when the prosecutor asked
about Ms. Gibson’s conversations with the victim advocate.
[Prosecutor:] Did you indicate to [the victim advocate] that you wanted
the charges dropped?
[Ms. Gibson:] I indicated to her that—I knew the charges weren’t going
to get dropped. Look at his history. I mean, they came full force. So I’m sorry
I’m not going where you want me to go with it.
[Prosecutor:] No.
[Ms. Gibson:] I’m answering your questions to the best of my ability.
Sorry, I’m—when I see nonverbal, I just pick up on it. So I have anxiety. I’m
sorry.
[Prosecutor:] I understand. Ms.—
[Ms. Gibson:] But yeah. I—ask your question again. I’m trying to
answer it.
5
No. 36918-8-III
State v. Riendeau
Id. at 239 (emphasis added). The final reference came during cross-examination, when
defense counsel asked her what she and Mr. Riendeau had discussed during the phone
call.
[Defense Counsel:] Okay. What did—in your communication with him,
were you talking about the dividing-up of property?
[Ms. Gibson:] Yeah. Well—yeah, we were talking—because his
mom—his mom was coming over to grab his things and I wanted to make sure,
you know, his important things, because he’s got a record and we weren’t
going to talk again, you know. That was it. I was just making sure that he got
his things. I didn’t want his things to just, you know—
[Defense Counsel:] Did you discuss that you would continue living in
the apartment?
[Ms. Gibson:] Yes.
Id. at 253-54 (emphasis added).
Defense counsel did not object to Ms. Gibson’s testimony or move to strike it.
Instead, after Ms. Gibson’s testimony, defense counsel moved for a mistrial on the basis
of her references to Mr. Riendeau’s criminal history. Alternatively, the defense asked for
a curative instruction. The court opted for the latter. The court noted that neither party had
elicited Ms. Gibson’s statements; they were instead volunteered as part of nonresponsive
answers to questions. When instructing jurors at the close of the case, the court informed
6
No. 36918-8-III
State v. Riendeau
the jurors that they were “not consider that the defendant has been convicted of any
crimes for any purpose.” Clerk’s Papers (CP) at 16.
The jury convicted Mr. Riendeau as charged. The trial court sentenced him to
60 months’ imprisonment, the maximum of the standard range.
Mr. Riendeau appeals.
ANALYSIS
Dismissal for cause
Dismissal of jurors for cause is reviewed for abuse of discretion. State v. Sassen
Van Elsloo, 191 Wash. 2d 798, 806, 425 P.3d 807 (2018) (plurality opinion). A trial court
abuses its discretion when it dismisses a juror without an adequate legal basis, for an
impermissible reason, or for a reason unsupported by the facts on record. Id.at 807
One legal basis for dismissal for cause is actual bias. RCW 4.44.170(2). Actual
bias is a state of mind, on the part of a juror, “which satisfies the court that the challenged
person cannot try the issue impartially and without prejudice to the substantial rights of
the party challenging.” Id.
Mr. Riendeau claims the record does not demonstrate Juror 18 suffered from actual
bias. We disagree. Juror 18 made clear his impartiality was conditional; it depended on
whether the case involved allegations of abuse by someone suffering from mental illness.
7
No. 36918-8-III
State v. Riendeau
Unbeknownst to Juror 18, the condition precedent to his ability to be fair was present in
Mr. Riendeau’s case. During her testimony, Ms. Gibson claimed Mr. Riendeau’s
misconduct was the manifestation of mental illness. This position was a well-established
part of Mr. Riendeau’s case.1 The trial court had adequate proof of actual bias. It did not
abuse its discretion by dismissing Juror 18.
References to criminal history
“A trial court should grant a mistrial when a trial irregularity is so prejudicial that
it deprives the defendant of a fair trial.” State v. O’Connor, 155 Wash. App. 282, 288, 229
P.3d 880 (2010). When a trial court denies a mistrial motion, we review its decision for
abuse of discretion. State v. Rodriguez, 146 Wash. 2d 260, 270, 45 P.3d 541 (2002). Our
standard is extremely deferential we will reverse the denial of a mistrial only if a trial
irregularity was so significant that no reasonable jurist would have agreed with the trial
court’s disposition. Id.
The irregularity here was Ms. Gibson’s references to Mr. Riendeau’s criminal
history. While these comments were improper, the trial court had a tenable basis for
determining they did not jeopardize Mr. Riendeau’s right to a fair trial. As noted by the
1
In the probable cause affidavit, it was alleged that Mr. Riendeau tried to convince
Ms. Gibson that “the only way anyone would listen to her and drop the charges is if she
tells them that he is not on his meds and he needs mental health treatment.” CP at 4.
8
No. 36918-8-III
State v. Riendeau
trial court, Ms. Gibson’s comments were not the result of intentional misconduct. See
State v. Gamble, 168 Wash. 2d 161, 178, 225 P.3d 973 (2010) (unintentional irregularities
less serious than intention). They were somewhat cumulative of other evidence, given the
jury’s awareness that Mr. Riendeau was in custody for assault. Id. 178-79 (prejudice is
lessened when improper evidence is cumulative). And the comments were brief and
undetailed, thereby reducing their inherent prejudice. Given these circumstances, the
modest degree of prejudice caused by Ms. Gibson’s statements was adequately addressed
by the trial court’s curative instruction. Id. at 179 (curative instruction may offset
prejudice).
Mr. Riendeau claims the repeated nature of Ms. Gibson’s comments heightened
their prejudice. We are unmoved. Although repeated, Ms. Gibson’s comments remained
vague. Moreover, Mr. Riendeau could have remedied any repetitive impact by objecting
and asking that the witness be admonished. Given the favorable nature of Ms. Gibson’s
testimony, Mr. Riendeau’s attorney likely decided against this approach for tactical
reasons. This would be understandable, but it does not provide a basis for relief on
appeal. “[T]he defense should not be allowed to second-guess its own tactical decision by
an after-the-fact objection.” Rodriguez, 146 Wash. 2d at 271.
9
No. 36918-8-III
State v. Riendeau
Statement of additional grounds for review
Mr. Riendeau has filed a statement of additional grounds for review, alleging the
prosecuting attorney labored under a conflict of interest and has engaged in vindictive
conduct. These allegations refer to facts outside the record. They therefore must be raised
through a personal restraint petition. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d
1251 (1995).
CONCLUSION
The judgment of conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Lawrence-Berrey, J.
______________________________
Fearing, J.
10