State v. French
| Decision Date | 06 December 2022 |
| Docket Number | 55766-5-II |
| Parties | STATE OF WASHINGTON, Respondent, v. TONY FRENCH, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
- Tony French appeals his convictions and sentence for 11 crimes including attempted first degree murder, first degree assault, two counts of second degree assault, first degree burglary, and unlawful possession of a firearm.
French argues that (1) the State presented insufficient evidence to prove that an aluminum bat was a deadly weapon for purposes of second degree assault or for purposes of deadly weapon enhancements, (2) his right to a unanimous jury verdict was violated as to his burglary charge, and (3) the State failed to preserve evidence. In his statement of additional grounds (SAG), French raises several additional issues.
We hold that (1) the State presented sufficient evidence to prove that an aluminum bat was a deadly weapon for purposes of second degree assault and for purposes of deadly weapon enhancements, (2) the trial court did not violate French's right to a unanimous jury verdict because sufficient evidence supported the alternative means of committing burglary, and (3) the State did not violate its duty to preserve evidence because the released evidence was only potentially useful evidence and the State did not act in bad faith in disposing of it.
As to his SAG, we hold that (5) French's pre-Miranda statement was made spontaneously and voluntarily, and thus the court did not err in admitting it, (6) the sentencing court properly included French's prior North Carolina convictions in his offender score, (7) French did not receive ineffective assistance of counsel, (8) the trial court did not improperly admit prior bad acts evidence, and (9) the trial court did not err by imposing a $500 crime victim assessment penalty. Accordingly, we affirm French's convictions and sentence.
Tony French and Susan Martinez were domestic partners with a child in common. In March 2018, Martinez obtained a no-contact order against French, which he violated numerous times. On July 14, 2018, French broke into Martinez's home and then hit her boyfriend, Devon Stith, on the head with a child-sized aluminum bat. As French swung the bat at Stith's head, Stith moved closer to French, lessening the force of the blow.
Then on September 7, French drove a stolen Toyota to Martinez's home and began shooting at Martinez as she sat outside. She ran away from her house, and French spun around and followed her in the Toyota. He continued shooting as she ran across the street. Martinez sustained several gunshot wounds. Multiple witnesses observed the shooting. It was later determined that the firearm used in the shooting was stolen.
After the shooting, law enforcement officers did not locate a gun at the scene. And when law enforcement officers initially interviewed the witnesses, none told them that Stith was armed or that this was a two-way shootout. The Toyota driven by French during the shooting was found on September 16.
Several days later, Detective Byron Brockway, Detective Richard Folden, and Forensic Investigator Tiffani Arcadia processed the Toyota. Investigator Arcadia found bullet holes on the Toyota. The bullet holes were rusted. Investigators took multiple photographs of the Toyota, including photos of the three bullet holes. Of note, the law enforcement officers did not find any bullets holes that suggested a bullet would have entered into the engine block.
At some point, the law enforcement agency released the Toyota to the insurance company, and it was sold at auction. The law enforcement agency involved here generally does not retain motor vehicles for the duration of the time that a case is pending because it does not have space to store all impounded vehicles. The agency's policy was that it retained vehicles for the entire case only for homicides or certain civil matters.
On September 25, Deputy Dominique Calata began pursuing a stolen Dodge Caliber. French, who was driving the Dodge, eventually crashed. Subsequently, French ran into the woods. Somewhere 70 to 100 yards off the road, a police dog found and bit French. Deputies Jankens and Thompson apprehended French. The arresting officers did not inform French of his Miranda rights while in the woods.[1] During their walk exiting the woods, French said unprompted, "You guys know who I am; you guys know what I did; all that stuff with my exgirlfriend was for my kids." Report of Proceedings (RP) (Aug. 31, 2020) at 43.
It took the deputies between five and thirty minutes to return to their vehicles from the woods. After securing French in the police vehicle, Deputy Jankens read him his Miranda rights. French invoked his right to remain silent, but he made additional unsolicited statements to Deputy Calata.
After law enforcement incarcerated French, Detective Folden collected DNA from French. During that visit, French asked Detective Folden if he had looked at the bullet holes in the vehicle French drove during the shooting. Detecetive Folden did not recall what he said in response to that inquiry, except that he told French to contact his attorney about the inquiry.
Ultimately, the State charged French with 11 counts, including attempted first degree murder, first degree assault, two counts of second degree assault, first degree burglary, and second degree unlawful possession of a firearm.
In August 2020, the court held a hearing on pre-trial motions. French had filed motions in limine to exclude witnesses, prior bad acts, French's in custody statements, and personal opinions from the State or any witnesses, among other things. That day, French also filed a motion to dismiss the case because the State had failed to preserve material exculpatory evidence-the Toyota he drove during the shooting.
The court conducted a CrR 3.5 hearing to determine whether French's pre- and postMiranda statements were admissible. At the hearing, the State presented three witnesses, and French did not testify. Both arresting officers testified that French made his statement spontaneously. The court entered findings of fact and conclusions of law. The relevant, undisputed facts were as follows: (1) the arresting officers did not make any promises or threats to French prior to his statements; (2) French did not appear impaired in any way; and (3) "it [was] reasonable that it would take deputies between five and thirty minutes to return to their patrol cars prior to defendant being provided his Miranda warnings." Clerk's Papers (CP) at 92. The court ruled that French's statements "to Deputies Jankens, Thompson, and Calata both prior to and after the administration of Miranda warnings [were] admissible." CP at 93. The court specifically ruled that "[t]he pre-Miranda statements made by the defendant to Deputy Jankens and Deputy Thompson were voluntary statements made spontaneously and not in response to any questioning by the deputies." CP at 92.
The court also heard French's motion to exclude prior bad acts. The State attempted to clarify which bad acts the motion in limine included, and asked French whether his motion included French's attempt to elude the police, his theft of the Toyota, and his possession of the stolen gun used in the attempted murder. French said that he was trying to include everything not related to the charged crimes. The State agreed that it would not seek to admit a number of prior bad acts, including unrelated threats to a woman in Oregon and an alleged kidnapping out of North Carolina. The court reserved ruling on the remaining acts.
On the morning of the first day of trial, the court heard French's motion to dismiss for failure to preserve material exculpatory evidence. French argued that the Toyota was exculpatory because Stith shot at French in the Toyota, and Martinez was actually injured by Stith's stray gunfire. French emphasized that Stith and Martinez, in their initial interviews with law enforcement, said that there was steam or smoke coming from French's vehicle, but the law enforcement officers failed to examine the engine. French further argued that it was routine law enforcement practice to hold vehicles involved in a homicide.
The trial court denied French's motion to dismiss, ruling that the Toyota was, at best, potentially useful evidence, and the State did not dispose of the Toyota in bad faith. The court noted that French had access to photographs of the Toyota, which would have allowed him to have an unimpeded discussion of the value of the bullet holes for his self-defense claim. The court further noted that even if French had been able to test the bullet holes, the tests likely would have limited his ability to argue his self-defense claim, rather than support it.
The matter proceeded to a jury trial that lasted three weeks. At trial, Forensic Investigator Loree Barnett testified that the bat used to strike Stith was made of aluminum. Martinez testified that French broke through the sliding glass door to her bedroom where she and Stith were sleeping, and then hit Stith, twice on the head with the bat. Martinez testified that the bat was her son's three-foot long, metal, baseball bat. She also noticed that Stith had a lump on his head after the assault.
Stith testified that, after French broke through the sliding glass door, French hit him in the head with an aluminum baseball bat and then fled. On cross-examination, when asked if the hit was "kind of like a bop on the head," Stith said, "[y]es, the motion came down." RP (Sept. 16 2020) at 1018. Stith further elaborated that as he was struck, he moved closer, so French couldn't have "as much torque on [the swing] as he probably could have." RP (...
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