State v. Fuller

• Decision Date: 08 August 2012
• Docket Number: No. 40593–8–II.,40593–8–II.
• Citation: 282 P.3d 126,169 Wash.App. 797
• Parties: STATE of Washington, Respondent, v. Jaycee FULLER, Appellant.
• Court: Washington Court of Appeals

169 Wash.App. 797

282 P.3d 126

STATE of Washington, Respondent,

v.Jaycee FULLER, Appellant.

No. 40593–8–II.

Court of Appeals of Washington, Division 2.

Aug. 8, 2012.

Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.

Brian Neal Wasankari, Pierce County Prosecuting Atty., Tacoma, WA, for Respondent.

VAN DEREN, J.

¶ 1 Jaycee Fuller appeals his convictions for first degree felony murder and first degree premeditated murder, arguing that (1) the State committed prejudicial misconduct by commenting on Fuller's partial silence, appealing to the jury's emotions, and minimizing the State's burden of proof; (2) the trial court abused its discretion in admitting propensity evidence and that such admission was not harmless; and (3) the trial court subjected Fuller to double jeopardy when it merged his two first degree murder convictions instead of dismissing one of them. We reject Fuller's double jeopardy claim. But we hold that the State committed prejudicial prosecutorial misconduct by using Fuller's partial silence as substantive evidence of his guilt, the trial court abused its discretion in admitting propensity evidence, and its admission of the propensity evidence was not harmless. Accordingly, we are compelled to reverse and remand for a new trial.¹

FACTS

I. The Crime and Investigation

¶ 2 In the early morning hours of March 8, 2009, 22–year–old Mohamud Ahmed, a driver for King Cab Company, was stabbed to death in his cab. Tacoma police officers discovered Ahmed's cab idling near the entrance to a parking lot on an isolated stretch of road in south Tacoma. Ahmed's body, surrounded by a significant amount of blood, was lying face-down on the ground on the driver's side of the cab, with his left arm tangled in the driver's seat belt.

¶ 3 Ahmed's killer inflicted knife wounds to Ahmed's neck, hand, and chest. Based on her autopsy findings, a forensic pathologist concluded that the injuries to Ahmed's right hand were consistent with defensive wounds and that the killer stabbed Ahmed's chest after slicing his neck. She estimated that Ahmed went into shock within three minutes and died within five minutes of his neck wound.

¶ 4 King Cab's global positioning system (GPS) confirmed that Ahmed picked up his last passenger at Masa Restaurant in Tacoma and the cab's fare meter showed Ahmed picked up that passenger at 3:05 AM.² Police obtained surveillance video footage from Masa and neighboring businesses showing a man standing on the sidewalk in front of Masa around 1:40 AM. The man in the surveillance footage is wearing dark clothing and a dark, form-fitting hat with a white stripe around the bottom. Approximately 25 minutes later, surveillance video recorded what appears to be Ahmed's cab perform a u-turn in front of Masa. Thus, the surveillance video confirms King Cab's records showing that Ahmed picked up a passenger at Masa at 3:05 am.

¶ 5 In the parking lot where police found Ahmed, police discovered a black knit cap, with a white stripe around the bottom and a logo for the Keg Steakhouse & Bar. Subsequent deoxyribonucleic acid (DNA) analysis showed that Ahmed's blood was on the outside of the cap in three to four places and that Fuller was the only source of DNA inside the hat. Investigators also found a single, 10–inch strand of wavy, brown, human hair inside the hat. Later DNA evaluation of that 10–inch hair strand established that Fuller could not be excluded as its source and that only 2 out of 1,674 Caucasians in the laboratory's data base were possible sources.

¶ 6 Near where police officers found the Keg hat, officers discovered several 13–inch–long shoe impressions in a thin layer of bark dust leading out of the parking lot. The officers did not request plaster molds of these shoe prints because the prints lacked detail and were distorted.

¶ 7 Inside the cab, detectives found a one dollar bill and a King Cab business card on the floor beneath the left rear seat, neither of which had any trace of blood or latent fingerprints. The cab's center console and glove compartment were orderly and their contents seemed undisturbed. Ahmed's wallet was in the center console and, although it did not contain any money, it also appeared undisturbed. Inside Ahmed's right front jacket pocket, investigators found $209 in currency, partially sliced and saturated with blood.

¶ 8 Although investigators discovered several hairs in the rear of the cab, their investigation excluded Fuller as the source of those hairs. Similarly, the police were unable to link Fuller to the cab itself with fingerprint evidence.

¶ 9 The State charged Fuller with two counts of first degree murder for Ahmed's death: one count alleged felony murder based on first degree robbery or attempted robbery and a second count alleged premeditated murder.

II. The Proceedings

¶ 10 Before trial, the court conducted a CrR 3.5 hearing and explicitly found that police arrested and informed Fuller of his Miranda³ rights. Fuller acknowledged he understood his rights, and he agreed to speak with detectives. The trial court further found that Fuller “did not invoke any of his rights and did not remain silent in response to any questions.” Clerk's Papers (CP) at 46. Because Fuller made a knowing, voluntary, and intelligent waiver of his right to remain silent when he chose to speak to detectives, the trial court concluded that Fuller's postarrest statements were admissible. Although Fuller moved in limine to prohibit it, the trial court ruled that “[Lead Homicide] Detective [Glenn] Miller may testify that, during the defendant's [postarrest] interrogation, the defendant never admitted or denied having committed the crime.” CP at 48.

¶ 11 In its opening statement, the State summarized Miller's postarrest interview with Fuller. Specifically, the State claimed that in response to Miller's comment that the surveillance video showed Fuller wearing the Keg cap outside Masa on the night of the murder, Fuller “d[id]n't deny that, but he did say that said he'd like to see that video.” Report of Proceedings (RP) (Feb. 3, 2010) at 14. Then, after further summarizing Fuller's interview with Miller, the State said that Fuller, “in the course of this interview, doesn't really admit or deny the murder, other than his initial claim that he was home that night.” RP (Feb. 3, 2010) at 15. Fuller did not repeat his objection to either of these statements.

¶ 12 Also during opening statement, the State gave a slide presentation outlining the State's argument. In this presentation, the State went through Fuller's interview with Miller, showing the jury slides that read, “Miller tells Fuller he saw him wearing the Keg cap on a video outside Masa. [Fuller] doesn't deny this, would like to see the video.” Ex. 38 at 23. Other slides stated:

• [Miller] describes [Fuller] in third person [in a hypothetical based on Ahmed's murder].

• ‘He’ loses his job at Yellow [C]ab.

• He's about to be evicted.

• He's pawning items.

• [Fuller] nodding to description of himself.

• [Miller]: ‘And in a moment of desperation he does something bad and someone ends up dead.’

....

• [Miller]: ‘Is this person a bad guy or just someone who made a mistake?’

• [Fuller]: ‘Someone that made a mistake.’

• [Fuller] doesn't really admit or deny [the murder].

Ex. 38 at 23–24 (emphasis added). Although Fuller noted a continuing objection to the State's use of a slide presentation in its opening statement, Fuller did not repeat his unsuccessful objection to the State's use of these statements. The trial court instructed the jury that “anything that they ... see, hear, or view during opening statements is not evidence; and they will only consider those remarks, statements, or photographs” that it admits as evidence during the trial. RP (Feb. 2 & 3, 2010) at 154–55.

¶ 13 At trial, the State introduced expert testimony regarding two surveillance videos. The State's expert testified that in the video of Fuller pawning his belongings on March 3, Fuller's clothes and stance were consistent with the unknown person in the March 8 Masa surveillance video wearing dark clothes and a dark hat. Although the State's expert could not exclude the possibility that Fuller was in both an earlier March 3 pawn shop surveillance video and the Masa surveillance video, the videos were not sufficiently detailed for the expert to give a definitive opinion identifying the unknown man in the Masa video as Fuller.

¶ 14 The State also elicited testimony from Miller on Fuller's not denying being in the Masa surveillance footage.

[MILLER:] I [told] him that I had video of him on Sixth Avenue on the night of the incident wearing his Keg cap, knowing that he had gotten into the cab [at Masa,] and that it was his Keg cap that was recovered at the scene.

[STATE:] And what did the defendant say when you told him this?

[MILLER:] He didn't make any attempt to deny the information ...

....

[MILLER:] His comment to me was that he'd, actually, like to see the video.

RP (Feb. 16, 2010) at 907. Throughout trial, the State made several additional references to Fuller's failure to deny culpability for Ahmed's murder.⁴

¶ 15 The State's evidence further showed that Fuller owned a black knit cap with the Keg logo and a white stripe around the bottom that was indistinguishable from the hat police found at the crime scene. The State also presented evidence that these Keg hats were not available to the general public. Fuller had worked at one of the two local Keg Restaurants that distributed these hats to employees at a holiday party in December 2006 or 2007.

¶ 16 Fuller wore his Keg hat frequently, at least through December 2008. But Fuller told a friend that he lost his Keg hat in early March 2009, when he jumped out of a third story window while “do[ing] a collection.” RP (Feb. 8, 2010) at 425–26. Miller testified that in his first conversation with Fuller, Fuller volunteered that he used to have a Keg hat like the one found at the crime...