State v. Bejar

• Decision Date: 19 July 2021
• Docket Number: No. 81166-5-I,81166-5-I
• Citation: 491 P.3d 229
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Miguel Antonio BEJAR, Jr., Appellant.

491 P.3d 229

STATE of Washington, Respondent,

v.Miguel Antonio BEJAR, Jr., Appellant.

No. 81166-5-I

Court of Appeals of Washington, Division 1.

FILED July 19, 2021

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, Suzanne Lee Elliott, Attorney at Law, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Atty. King County, King Co. Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent

PUBLISHED OPINION

Coburn, J.

¶ 1 Miguel Antonio Bejar, Jr. appeals his convictions for murder in the first degree with a firearm enhancement and unlawful possession of a firearm in the first degree. Bejar objects to the secondary security screening ordered by the trial court. We conclude that neither requiring the jurors to go through the secondary screening on the first day of trial nor posting the court's order on courtroom security on the courtroom door was inherently prejudicial. The court did not abuse its discretion in ordering the secondary screening measures here. We affirm.

FACTS

¶ 2 Arturo Alvarez was killed in a drive-by shooting in April 2017. After the investigation, the State eventually charged appellant Miguel Antonio Bejar, Jr. and Antonio Inda, Bejar's codefendant at trial, with Alvarez's murder. The State charged each defendant with murder in the first and second degrees and in both counts alleged that they were armed with a handgun at the time (firearm enhancement). The State further charged Bejar and Inda with unlawful possession of a firearm — Bejar in the first degree and Inda in the second degree.

¶ 3 According to the State, the shooting of Alvarez was part of a gang war in South King County that was instigated by gang members disrespecting each other over social media. At trial, the State presented evidence that Bejar was a member of the South Side Locos gang and Inda was a member of the Varrio Locos gang. The State's theory was that the South Side Locos and the Varrio Locos were united in a gang war against the United Lokotes gang, of which Alvarez was a member.

¶ 4 At an omnibus hearing in August 2019, the court brought up the issue of security measures for trial and said that after reviewing the certificate of probable cause and everything in the court file, its inclination was to have secondary security measures in place during trial. The prosecutor stated that secondary security was "absolutely necessary" because one of the State's witnesses had been shot and another assaulted.

¶ 5 At a later status conference, the court and the parties again discussed the issue of a secondary security screening outside the courtroom during trial. The prosecutor explained that the State's security concern was for the use of cell phones in the courtroom because another member of Varrio Locos had shot one of the State's witnesses and the defendant's girlfriend posted the certificate for probable cause on the messaging application Snapchat with the caption "You snitch once and get shot, you going to snitch again?" The prosecutor explained, "So my concern is if there are cell phones in this courtroom, we run the risk of continued witness intimidation, continued witness tampering, continued calls to the various groups that might be interested in this case to retaliate for testimony, for cooperation, and that places the [S]tate's witnesses in danger." Attorneys for Bejar and Inda expressed concerns that a secondary security screening would prejudice their clients.

¶ 6 Toward the end of the discussion, the court stated that if it ordered secondary screening, it would post the order on the courtroom door: "And if I do do [sic] secondary screening, I would do it in the form of an order that we would put on the court door so that any of the parties coming in, or any of the jurors coming in will know that this is what the court has ordered specifically for secondary screening, so there is a minimum of pushback to any of the officers working outside." The court reserved ruling on the issue and invited the parties to submit briefing within the week. Bejar filed a written memorandum opposing secondary screening measures.

¶ 7 At a September 10, 2019 hearing on pretrial motions, the court and the parties revisited the issue of secondary screening. The prosecutor said that one of the State's witnesses, S.E.B., a juvenile, had been shot by another individual, F.H.B. The prosecutor said that F.H.B. called S.E.B. a snitch on social media in the months before he shot him. The prosecutor said that before F.H.B.’s bail hearing, in July 2019, there was a Snapchat post that showed the certification for probable cause for S.E.B.’s shooting with text stating, "You're going to snitch once, get shot, and then snitch again[?]" And it had "VL" on it, which was apparently for Varrio Locos. Weeks prior to the shooting, the prosecutor said Inda called S.E.B. from the juvenile detention facility and asked if he was going to testify.

¶ 8 The prosecutor further stated a group of people associated with Varrio Locos had assaulted another of the State's witnesses, S.C., and S.C. said he overheard them talking about the assault being at the behest of Inda. The prosecutor also reported an incident disclosed to the State in discovery where Inda assaulted a United Lokotes member, who is the cousin of the victim in this case, at a juvenile detention facility.

¶ 9 The next day, September 11, 2019, after more discussion on the secondary screening issue, the court orally ruled that it was going to order secondary screening:

And so I am going to order secondary security. I think it's clear that these particular defendants have been perfectly appropriate in court and they in and of themselves are not a security risk. Secondary security is strictly for any courtroom observers that come in.

I am going to make a finding that secondary security is not inherently prejudicial. It is not aimed at the defendants. It is not a blanket security order that was relied on in Hertzog.

The nature of the allegations in this case involve ongoing gang violence between two different gangs with multiple social media postings. That in particular is what inflamed the gang war, and these are the allegations. It certainly is not fully proven, but it is what the Court needs to take into consideration.

...

There's been allegations of witnesses being assaulted as a result of this ongoing gang war, and in particular Facebook posts that I read provided here refer to different people as being snitches.

The Court cannot monitor cellphone recordings. Cell phones in and of themselves are small enough. They can be used in a way in which it is impossible for both myself or the court staff to determine whether or not anyone is recording.

...

It does appear that the defendants and their friends have consistently used Facebook or other social media to get information out, which does increase the risk of widespread dissemination of information and increases the risk to witnesses in this case.

Unlike Hertzog and even Gorman,^[1] these security measures are not aimed at the defendants particularly, and they will not necessarily be imputed to the defendants.

¶ 10 The court further explained that it would minimize prejudice to the defendants by locating the secondary security screening "through the whole hallway, meaning that any of the courtrooms up and down the hallway will be subject to secondary security."

¶ 11 Accordingly, the court issued a written order on courtroom security to take effect beginning October 14, 2019, which was the first day of trial. In the first paragraph, the order stated its purpose: "The purpose of this Order is to provide the parties a fair trial, to preserve the dignity of these proceedings, and ensure witness safety." The order described the secondary screening measures as follows:

1. Persons entering the courtroom may be subjected to secondary screening, including use of a magnetometer, handheld metal detector, and pat down searches. Persons who fail to comply with screening requirements will not be permitted access to the courtroom.

2. Except as specifically authorized in this document or by separate order of the Court, no cell phones, cameras, or other electronic devices capable of audio or video recording, or component parts of such devices, will be permitted in the courtroom. Persons entering the courtroom may be required to leave such devices with security personnel ...

The order stated that jurors were required to go through secondary screening but could keep their laptops, tablets, and cell phones as long as they were wearing their juror badges.

¶ 12 The secondary screening started on the first day of trial. At the end of the day, outside the presence of the jury, the court and the parties revisited the issue of the secondary screening. Responding to an objection by Bejar's attorney to the location of the secondary screening just outside the courtroom, the court explained that the secondary security screening applied to three other courtrooms on the same floor. The court determined that jurors should be able to bypass secondary screening with their juror badges. Accordingly, the court issued a written first-amended order on courtroom security allowing jurors to bypass secondary screening and keep their laptops, tablets, and cell phones as long as they were wearing their juror badges.

¶ 13 About two weeks later, the court issued a written second amended order on courtroom security allowing people in the courtroom who had left their devices with security personnel to retrieve the devices during the lunch recess.

¶ 14 The jury convicted Bejar of murder in the first degree with a firearm enhancement and, after subsequent proceedings, on the unlawful possession of a firearm charge as well. The...