State v. Cloud

• Decision Date: 01 September 2015
• Docket Number: 45579-0-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. AARON GUSTER CLOUD, Appellant.

STATE OF WASHINGTON, Respondent, v. AARON GUSTER CLOUD, Appellant.

No. 45579-0-II

Court of Appeals of Washington, Division 2

September 1, 2015

UNPUBLISHED OPINION

Lee J.

A jury convicted Aaron Cloud of drive-by shooting, first degree unlawful possession of a firearm, ^[1] and first degree assault.He appeals, arguing that the State presented insufficient evidence to support a guilty verdict for first degree assault, and that the trial court erred by excluding evidence related to flight and other suspects.In Cloud's statement of additional grounds^[2](SAG), he argues that (1)the trial court erred by admitting impeachment evidence, (2)the trial court erred by admitting identification evidence, (3)he received ineffective assistance of counsel, (4)the prosecutor committed misconduct during closing arguments, (5)the trial court improperly instructed the jury, and (6) cumulative error requires reversal.

We hold that the State presented sufficient evidence to support a guilty verdict for first degree assault, and the trial court did not abuse its discretion by excluding evidence.We further hold that the trial court did not err in its evidentiary rulings, Cloud did not receive ineffective assistance of counsel, the prosecutor did not commit misconduct, and the trial court did not improperly instruct the jury.Finally, the absence of any error forecloses the application of the cumulative error doctrine.Accordingly, we affirm.

FACTS

Michele Ross was driving her Volkswagen Jetta in Bremerton.Ross's Jetta was silver with black wheels.Cloud, who lived with Ross at the time, sat in the front passenger seat.Brandon Egeler sat in the backseat behind Ross.The windows were rolled down in Ross's car.

Ross was in the left turn lane at a stoplight when a truck, driven by Kyle Fortuna, approached to the right.Cloud had a "verbal confrontation" with Fortuna.3 Verbatim Report of Proceedings (VRP)at 84.Ross turned left, and the truck followed, chasing the Jetta through traffic.As the truck approached the Jetta on the right, Ross slammed on her brakes to let the truck pass.As Ross stopped, Cloud raised his arm and there was "a pop."3 VRPat 88.Ross turned onto another street to "get away from the truck."3 VRPat 90.

Fortuna called 911 and reported that he was shot at by a white male with a shaved head in a silver Jetta with black rims.Fortuna arranged to meet police officers at a nearby gas station.Police officers retrieved one bullet from the driver's door panel of Fortuna's truck.

Bremerton Police Officer Jonathon Meador responded to the report of a drive-by shooting.Officer Meador saw Ross's car and blocked the road with his patrol car.Officer Meador saw Cloud "[m]oving around frantically."4 VRP at 152-53.When Ross stopped at Officer Meador's car, Cloud opened his door and ran away.Officer Meador heard gunshots as Cloud began to run from the Jetta, and Officer Meador ordered Cloud to stop, but Cloud continued running.Cloud fell as he ran and was eventually stopped.Police searched the area and found a gun near where Cloud fell.The bullet found in Fortuna's truck matched the caliber of the gun found.Test results of the gun and bullet were inconclusive as to whether the gun found fired the bullet found in Fortuna's truck.

The State charged Cloud with drive-by shooting, first degree unlawful possession of a firearm, and first degree assault.The State moved to exclude evidence that Cloud fled from police because of an outstanding Department of Corrections(DOC) warrant, arguing that the evidence was self-serving hearsay.The State also moved to exclude evidence of other suspects, such as Egeler.Cloud objected to both motions.

1.Hearings outside the presence of the jury

During voir dire of Fortuna outside the presence of the jury, the State played a recording of the 911 call.The caller in the 911 call identified himself as Fortuna, and gave his name address, make and model of his vehicle, and location.Fortuna testified that the information on the recording was accurate.The 911 call also indicated that Fortuna arranged to meet police officers at a nearby parking lot, and officers testified that they actually met Fortuna at a nearby parking lot.The State moved to admit portions of the 911 call for purposes of identification.Cloud objected, but then acknowledged that the portions of the call that identify the shooter as a white male with a shaved head in a silver Jetta were admissible.The trial court granted the State's motion and admitted the portions of the 911 call related to the identification of the shooter and the vehicle.

Also at a hearing outside the presence of the jury, Cloud sought to introduce evidence of his outstanding DOC warrant through testimony of a police officer.The State objected, arguing that the evidence was self-serving hearsay and that the trial court had previously granted the State's motion to exclude the evidence.Cloud argued that the statement was being offered as motive of flight.Cloud stated that the evidence would rebut the State's argument that he fled because of consciousness of guilt.The trial court asked "[D]o you anticipate offering any evidence aside from the fact that there was a DOC warrant, any other evidence connecting that DOC warrant to the issue of flight?"7 VRPat 527.Cloud responded: "No."7 VRPat 527.The trial court found that: "It seems to me if the only information the jury has is that your client had a DOC warranty to argue that that was the basis of the reason he ran, without any other evidence, is speculative."7 VRPat 527.

Subsequently again outside the presence of the jury, Cloud sought to admit testimony from the arresting officer, Officer Forbragd, that Cloud made a statement upon arrest to the effect of: "Okay, guys.It's just a DOC warrant.It's only a warrant."7 VRPat 546.The State objected on the basis of self-serving hearsay and the trial court's prior rulings on motions to exclude the evidence.Cloud, however, argued that the statement was not hearsay.Cloud argued that the statement went "to the state of mind of the defendant at the time of his arrest and his actions prior to his arrest, which is not hearsay.It is not offered for the truth of the matter asserted.In fact, I don't care really that-whether there was or was not a warrant."7 VRPat 547.The trial court allowed Officer Forbragd's testimony.The State moved to prohibit further explanation or argument about the DOC warrant.The State argued that Officer Forbragd's statement was admitted, but requested that "no evidence be added to that statement to further explain what a DOC warrant is, why it would be a lesser reason for them to run, anything about three-day sanctions."8 VRPat 586-87.Cloud responded: "I agree, Your Honor."8 VRPat 587.

2.Trial

At trial, Ross testified that on the day of the shooting, Cloud was "on edge" and "[u]neasy, " and that she was concerned after Cloud and Fortuna's "verbal confrontation."3 VRPat 78, 84.Ross testified that she never saw a gun, and denied telling Officer Floyd May that "[t]he driver of the truck and [Cloud] got into a dispute, and he pulled a handgun and began shooting at the truck."3 VRPat 99.

For purposes of impeachment, the trial court allowed Officer May to testify that Ross told him that Cloud and Fortuna "got into a dispute, and Cloud pulled out a handgun and began shooting at the truck" and that she did not know that Cloud had a gun before he started shooting.4 VRP at 208.The trial court instructed the jury that the testimony could be considered only for the purposes of impeachment.

Fortuna testified at trial.However, he repeatedly testified that he did not recall the events and that he did not want to testify.

During the State's direct examination of Fortuna before the jury, the State played the portions of the 911 call that the trial court ruled admissible.Fortuna testified that he remembered being shot at and that he recognized the silver Jetta as the car involved.Fortuna also testified that he identified Cloud at the scene, but that he felt pressured to do so.Fortuna did not recall telling officers that he saw a passenger's arm stick out of the Jetta's window and shoot at him.Fortuna also denied telling police officers that he saw a gun in Cloud's hand.Fortuna saw the "silhouette of a gun, " heard a gunshot, and "ducked."4 VRPat 135.This was a scary and traumatic event for Fortuna.

Officer Meador testified that Cloud was the only white male with a shaved head at the scene, and that Egeler had a "medium haircut" but not "a shaved head."4 VRP at 190.Officer Michael Nelson testified that Fortuna identified Cloud the evening of the shooting.

After the State and Cloud rested, Cloud informed the trial court that he intended to argue that there were two people in the car who matched the physical description of the suspect.The State objected.Cloud argued that the evidence could "go toward the issue of reasonable doubt.Rather than saying there's another, suspect, it goes to the issue of reasonable doubt as to whether they got the right suspect."8 VRPat 583.Cloud claimed that he was entitled to "argue any fact in evidence and bring whatever inferences we can bring to those facts during the course of argument, even if the argument would be that another person is in the position to, meets the description of, and had the opportunity to commit the crime."8 VRPat 583-84.The trial court ruled that Cloud could

argue based on what's been presented at trial regarding identity, specifically the testimony of Mr. Fortuna regarding identity, and the other evidence related to identity of those persons in the car.I'm not going to, [defense counsel] allow you to argue at this point that-or

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