State v. Dyson

• Citation: 360 P.3d 25,189 Wash.App. 215
• Decision Date: 06 August 2015
• Docket Number: No. 32248–3–III.,32248–3–III.
• Parties: STATE of Washington, Respondent, v. Donald Lee DYSON, Jr., Appellant.
• Court: Court of Appeals of Washington

189 Wash.App. 215

360 P.3d 25

STATE of Washington, Respondent,

v.Donald Lee DYSON, Jr., Appellant.

No. 32248–3–III.

Court of Appeals of Washington, Division 3.

Aug. 6, 2015.

David L. Donnan, Mick Woynarowski, Washington Appellate Project, Seattle, WA, for Appellant.

Brian Clayton O'Brien, Spokane Co. Pros. Atty., Larry D. Steinmetz, Cnty. Prosc. Atty. Ofc., Spokane, WA, for Respondent.

PUBLISHED IN PART OPINION

FEARING, J.

¶ 1 A jury found Donald Dyson guilty of two counts of first degree assault stemming from a bar parking lot fight. The jury also found by special verdict that Dyson was armed with a deadly weapon during the commission of the assaults. Dyson appeals his conviction and contends that the trial court: (1) violated his right to a public trial, (2) incorrectly instructed the jury on the definition of “deadly weapon,” and, (3) incorrectly instructed the jury on transferred intent. We affirm his conviction.

¶ 2 At sentencing, the trial court found Donald Dyson's conduct qualified for imposition of the statutorily mandated five-year minimum term under RCW 9.94A.540because the force employed by Dyson in committing the assaults could likely have resulted in death. Therefore, the trial court ordered the mandatory minimum confinement for each charge. On appeal, Dyson contends the judicial finding violated his right to a jury trial. Based on the recent United States Supreme Court decision in Alleyne v. United States,–––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), we agree. We vacate Dyson's sentence and remand for resentencing.

FACTS

¶ 3 One evening Julie Rodriguez–Reeves invited Donald Dyson to party with friends and her. Dyson accepted.

Dyson, Rodriguez–Reeves, her roommate Jodi Morphis, and her son's girlfriend Alyssa Bishop assembled at the Corner Club bar in Spokane at 8 p.m. After an hour, the quartet moved to the Special K, another Spokane bar. At the Special K, Dyson socialized with other patrons, including Arthur Ward. Dyson and others imbibed until the bar closed. Morphis later testified she was “[p]retty sure that everyone I was with was intoxicated.” Report of Proceedings (RP) at 343.

¶ 4 When the Special K bartender announced closing time, Donald Dyson exited to the parking lot, where he joined Julie Rodriguez–Reeves, Arthur Ward, and Alyssa Bishop. In the parking lot, Spencer Schwartzenberger, another Special K patron, sat in his Ford Explorer with music emitting from the vehicle's speaker system. Dyson enjoyed the speakers' sound, chatted with Schwartzenberger, and eventually entered the passenger seat of the Ford Explorer. After a brief conversation with Dyson, Schwartzenberger called to his friend Chris Dailey that it was time to leave. Dailey ignored Schwartzenberger's entreaty and continued to converse with Rodriguez–Reeves and Jodi Morphis. Dyson overheard Dailey invite Rodriguez–Reeves to Dailey's home and, when she refused, Dailey called her crass names. Schwartzenberger confirmed that Dailey uttered “choice words” during the interaction.

¶ 5 Donald Dyson took offense to Chris Dailey's comments to Julie Rodriguez–Reeves, and one of the two men started an altercation. As the two men pushed and shoved, Spencer Schwartzenberger exited his Explorer and sought to end the fight. Schwartzenberger attempted to separate the two combatants by pushing them away from each other. Dyson thought Schwartzenberger had joined the clash against him. Dyson pulled and waved a knife so Schwartzenberger and Dailey would leave him alone. As he “waved” his knife, Dyson stabbed Schwartzenberger in the throat in what Schwartzenberger described as a “roundhouse-type motion.” RP at 227. Dyson testified at trial that someone shoved him from behind toward Schwartzenberger, and the shove caused the wounding of Schwartzenberger.

¶ 6 After Donald Dyson stabbed Spencer Schwartzenberger, Arthur Ward tackled Dyson. During the struggle, Ward tried to grab the knife from Dyson's hand and was himself stabbed in the hand and cut on the temple. Dyson also twice punched Ward. Dyson arose from the tackle and walked to a friend's son's house.

PROCEDURE

¶ 7 The State of Washington charged Donald Dyson with two counts of assault in the first degree. One count covered the stabbing of Spencer Schwartzenberger and the other count addressed the cutting of Arthur Ward. The State alleged that Dyson committed each assault with specific intent to inflict great bodily harm with a deadly weapon or by any force or means likely to produce great bodily harm or death. The State sought a deadly weapon sentencing enhancement for each count.

¶ 8 During voir dire, the trial court heard the State's for-cause challenge to a venirewoman on the record at the judge's bench, out of the jury's hearing. The trial court also conducted peremptory challenges on paper. Before addressing the challenge for cause, the trial court commented to the jury:

THE COURT: Folks, at this point the attorneys have some work to do in selecting the jury. They are going to work back and forth with a piece of paper and indicate to me what their challenges are, and so forth.

This is a time strangely enough when you and I have to be present in this room, but we don't really get to do anything. We are going to sit and literally look at each other, as odd as that may seem.

If you have something with you that you would like to read, be it a tablet or an actual whatever, go right ahead. Also, if you want to visit with your neighbor, that is fine; just keep the noise as low as possible so the attorneys can hear themselves think, and I will let them proceed.

MR. MARTIN [State's counsel]: Your Honor, do you want us to approach for cause first?

THE COURT: Yes, you can do that.

(The following was held out of the hearing of the jury:)

THE COURT: As to cause?

MR. MARTIN: You, know, my only challenge for cause is 29. She seemed to be the one most concerned about remaining fair. That is my only challenge.

MR. DRESSLER [Defense counsel]: Your Honor, by the same token she did indicate she thinks she could handle it. That is why I spoke to both of them.

But I don't have challenges for cause.

THE COURT: All right. Appropriate to say—I think her answer wasn't clear enough regarding being fair in this particular case, but I don't think she's there, so I'm going to strike her for cause.

That will be the only strike for cause? All right.

RP at 170–72.

¶ 9 During trial, Donald Dyson anticipatorily objected to the State questioning a Spokane police officer regarding the current location of Alyssa Bishop or Julie Rodriguez–Reeves and whether either had cooperated in the investigation. The trial court entertained argument from counsel concerning the objection during a sidebar conference on the record but out of the hearing of the jury.

¶ 10 After closing arguments, the trial court instructed the jury on the two first degree assault charges as follows:

To convict the defendant of the crime of assault in the first degree, as charged in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about SEPTEMBER 8, 2012, the defendant assaulted SPENCER SCHWARTZENBERGER;

(2) That the assault was committed with a deadly weapon or by a force or means likely to produce great bodily harm or death;3) That the defendant acted with intent to inflict great bodily harm; and(4) That the acts occurred in the State of Washington.

Clerk's Papers (CP) at 85. The trial court submitted an identical instruction for the second count of first degree assault involving Arthur Ward.

¶ 11 The court instructed the jury on the definition of “deadly weapon” as follows:

Deadly weapon alsomeans any weapon, device, instrument or article which under the circumstances in which it is used, attempted to be used, or threatened to be used is readily capable of causing death or substantial bodily harm.

CP at 82 (emphasis added). This definition of deadly weapon also appeared as part of the court's instruction on the deadly weapon special verdict with the following additional language:

A knife having a blade longer than three inches is a deadly weapon. Whether a knife having a blade less than three inches long is a deadly weapon is a question of fact that is for you to decide.

CP at 95.

¶ 12 The State of Washington posited that Donald Dyson could be guilty of assaulting Arthur Ward through the doctrine of transferred intent. The State secured a jury instruction on that theory that read:

If a person acts with intent to assault another, but the act harms a third person, the actor is also deemed to have acted with intent to assault the third person.

CP at 81. In overruling Dyson's objection to the transferred intent instruction, the trial court ruled:

I think there is evidence, and I think that is—if there is evidence in the case that would allow this to be argued, each side is entitled to their theory. And so regardless of what evidence may come in now, there is some evidence in the trial that would allow that instruction. So I'm going to allow that to stand.

RP at 645. During closing, the State explained the two theories under which the jury could find Dyson guilty of assault as to both Schwartzenberger and Ward:

But when you get down to intent, it is not essential in this case for the [S]tate to prove that Mr. Dyson intentionally assaulted Arthur Ward for you to find him guilty of assault in the first degree.

There's a legal theory that the [c]ourt instructed you on called transferred intent. And what that means is, if you believe beyond a reasonable doubt that Mr. Dyson was trying to get another shot in at Mr. Schwartzenberger, like Mr. Ward described, and that he intended the great bodily harm or to inflict more great bodily harm than he had already done, but he instead assaults a second person—in this case they call it a third person—and instead assaults somebody else, that the intent that he was using towards Mr. Schwartzenberger transfers to make Mr. Ward a victim in that case.

So if you find that Mr. Dyson intended to get Mr.

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