State v. Cox

• Decision Date: 03 February 2020
• Docket Number: 78398-0-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JARON LAMAR COX, Appellant.

STATE OF WASHINGTON, Respondent,
v.
JARON LAMAR COX, Appellant.

No. 78398-0-I

Court of Appeals of Washington, Division 1

February 3, 2020

UNPUBLISHED OPINION

Smith, J.

Jaron Cox was convicted of attempted murder in the first degree for shooting Alden Gibbs. On appeal, he argues that his conviction must be reversed because the evidence was insufficient to support a finding that he acted with premeditated intent to cause Gibbs's death. He argues in the alternative that a new trial is warranted because the to-convict instruction relieved the State of its burden to prove premeditation, the State withheld material impeachment evidence, the trial court excluded Cox's exculpatory statement to an officer, and the prosecutor committed misconduct during closing.

We conclude that the evidence was sufficient, when viewed in the light most favorable to the State, to support a finding that Cox acted with premeditated intent to cause Gibbs's death. We also conclude that the to-convict instruction was adequate, that the impeachment evidence withheld by the State was not material in light of the record in this case, and that both the exclusion of Cox's exculpatory statement and the prosecutor's statements during closing were harmless. Therefore, we affirm.

FACTS

This case arises out of a shooting that occurred at 2:17:40 a.m. on January 16, 2017, in the Pioneer Square neighborhood of Seattle. The shooting occurred near the southwest corner of a building located at 164 South Washington Street (Fuel building). The Fuel building is situated on the north side of South Washington Street. It houses multiple bars, including Stage nightclub and Fuel, which is located in the southwest corner of the Fuel building. Just west of the Fuel building, on the same block, is a parking lot (parking lot) that is separated from the Fuel building by an alley, where the shooting took place.

Earlier that morning, around 1:00 or 1:30 a.m., a group of Seattle police officers, including Officers Victor Pirak and Jennifer Hunt, were standing on the south side of South Washington Street in front of McCoy's Firehouse bar, across the street from and slightly east of Fuel. The officers were there to "try to monitor and talk to people and identify where problems may arise" as the bars in that area began to close. At some point, the officers became aware of a fight breaking out near Fuel. Officer Pirak saw what he later described as "a commotion where people were actually starting to put hands on each other" occurring on the southwest corner of the Fuel building. Another officer later testified that, at the corner of the Fuel building, he "saw two black males fighting one another" and "throwing punches at each other." Some of the officers, including Officer Pirak and Officer Hunt, began walking along the south sidewalk of South Washington Street, in the direction of the fight. As Officer Pirak walked in that direction, he "saw the physical altercation become more grabbing on." He "thought [he] saw a swing," and he "saw somebody get kind of pulled down and maybe people trying to pull him off." Officer Pirak then heard "a number of rounds being fired." The shots sounded to Officer Pirak like they were coming from the parking lot.

Officer Pirak took cover behind a car. As he did so, Officer Hunt ran past him. Officer Pirak also saw another officer, Scott Barker, moving along the north sidewalk in front of Fuel. Officer Pirak thought that would be a safer position, so he came around the car he had taken cover behind and crossed the street. As Officer Pirak approached the Fuel building he saw a man, later identified as Gibbs, lying on the ground where the fight had been happening. Gibbs had suffered multiple gunshot wounds. Although he survived, he is unable to walk.

Officer Barker also "heard multiple gunshots coming from th[e] location where the fight was." He "drew [his] gun and . . . immediately started going there." As he rounded the corner of the Fuel building, he saw a large black SUV facing him, parked facing southbound in the alley. He "immediately started scanning the area looking for the threat." He later testified that he looked northwest into the parking lot and saw a man, later identified as Cox, "walking west through the parking lot kind of nonchalantly, calmly, when everyone else was kind of frantic because there was gunshots." Officer Barker testified that he made eye contact with Cox, who started running through the parking lot toward a Camaro that was parked in the lot. Cox was accompanied by a woman, later identified as Princess Combs, who got into the driver's side of the Camaro. Officer Barker testified that he saw what appeared to be Cox trying to hand something to Combs, and Combs making facial expressions and hand motions indicating that she did not want to accept whatever it was Cox was trying to hand her. Cox then ran behind the Camaro and ducked. At this point, Officer Barker had his gun out and was yelling for Cox to show him his hands and get on the ground. Cox ultimately complied, -and Officer Barker handcuffed Cox behind the Camaro on his stomach. Officer Hunt later testified that she saw the shooting and witnessed the shooter turn and flee into the parking lot. She also testified that she did not lose sight of the shooter from the time that she saw him shooting until the time that Officer Barker arrested him, i.e., Cox.

Officer Barker testified that after he arrested Cox, he looked underneath the Camaro "and approximately 2 feet from where Mr. Cox was there was a pistol with the slide locked to the rear, and so [Officer Barker] confiscated that." According to a later-filed probable cause statement, "Cox immediately told Officer Barker that the gun was not his and that someone gave him the gun to hide."

At the time of his arrest, Cox was wearing a black jacket with large, white cursive lettering across the back. The gun recovered from under the Camaro, a "9-millimeter Luger caliber Glock semi-automatic pistol," was later confirmed as the gun used to shoot Gibbs.

The State charged Cox with one count of attempted murder in the first degree and one count of assault in the first degree, in each case while armed with a firearm. Prior to trial, the State moved to exclude, if offered by Cox, evidence of Cox's statement to Officer Barker that he had been given the gun to hide. The State contended that Cox's statement was hearsay and did not fall under any recognized hearsay exception. In response, Cox argued that the statement was admissible as an excited utterance; he also argued that it was not hearsay because he was offering it not for the truth of the matter asserted but to show that the subsequent police investigation was inadequate. The trial court excluded the statement, explaining, "I don't see it has relevance for a non-hearsay purpose."

At trial, Gibbs testified that on the evening of the shooting, his friends talked him into going out to Stage nightclub. Stage was holding an "all-black party" that night, "meaning everybody was wearing black .. . clothing." Gibbs and his friends arrived around 12:15 or 12:20 a.m. Gibbs did not see any altercations in the club, but toward the end of the night, he heard that things would be ending early because someone was "attacking females." Gibbs and his friends decided to leave. As they exited Stage, Gibbs asked a friend to get his car. Gibbs, meanwhile, planned to escort Libby Pinder, a friend that he had seen in the club earlier, to her car.

Pinder, who also testified, recalled that as she and Gibbs were walking toward the parking lot, "there was a dude that was riled up." Pinder described him as "African-American and kind of chubby" and heavier than Gibbs. Gibbs described the man as "about six-foot, if that. Maybe six-one. Probably 50 pounds more than me. ... I don't want to say that he's solid, you know, but he's a bigger, heavy-set guy." Pinder recalled saying to Gibbs, "'I think that's the guy that was in there that was riled up. I think so.'" Pinder testified that the man heard her and "started saying unpleasant things to [her, ] and [Gibbs] started sticking up for [her]."

Gibbs testified that the man said something to him like, "'Well, you trying to save these girls or something? I'll slap you."' Gibbs looked at the man and "was just like, you know, like, 'You know, whatever.'" As Gibbs and Pinder walked off, Gibbs looked back and saw the man "kind of walking up on me." Gibbs expressed that he did not want to fight, but testified that the man "was determined to fight." Gibbs had never seen the man before. Gibbs tried to stay calm, but then the man swung at him and a fight broke out. Gibbs recalled that when the man first swung at him, they were at the entrance of the alley between the Fuel building and the parking lot.

Gibbs testified that as the man was swinging at him, Gibbs was swinging back, and eventually Gibbs "knocked him" and he fell on a black SUV that was in the alley. According to Gibbs, the SUV backed up and the man fell onto the ground. Gibbs testified that the next thing he remembers-after confirming that the man was on the ground and no longer a threat-was that Gibbs "heard one gunshot and . .. was laying on the ground." Gibbs "never felt the gunshot" but knew that he "was on the ground and everybody was screaming at [him]." Gibbs recalled taking the ambulance to Harborview Medical Center, where he was treated for multiple gunshot wounds. The surgeon who treated Gibbs at the hospital testified that although he could not offer an opinion as to the relative positions of Gibbs and the person who fired the weapon, "[i]t looks, according to the CT scans and the injuries, the bullet entry wounds were from the back." An officer who collected evidence at the scene testified that fresh chips found in the concrete indicated "somebody pointing down at somebody that had fallen and then continuing to shoot."

When Gibbs awoke in the...