State v. Gogo

• Docket Number: 84083-5-I
• Decision Date: 26 December 2023
• Parties: STATE OF WASHINGTON, Respondent, v. JUSTIN GOGO, Appellant.
• Court: Washington Court of Appeals

1

STATE OF WASHINGTON, Respondent,
v.
JUSTIN GOGO, Appellant.

No. 84083-5-I

Court of Appeals of Washington, Division 1

December 26, 2023

Feldman, J.

A jury convicted Justin Gogo of three counts of child rape. Gogo raises several challenges on appeal regarding the denial of his motion for a mistrial, the denial of his motion to excuse a juror for cause, prosecutorial misconduct, double jeopardy, and the terms of his judgment and sentence. We agree with Gogo that the trial court abused its discretion in denying his motion for a mistrial after a witness testified, in violation of a pretrial order excluding and suppressing any statement or disclosure that Gogo had sexually assaulted the victim's sister, that Gogo "had been fooling around with those kids." We therefore reverse the trial court's ruling denying his motion for a mistrial and remand the matter for a new trial without reaching Gogo's other assignments of error.

I

Shannon Smith (Shannon) is the mother of two children, J.H. (born in 2006) and T.H. (born in 2005). Shannon started dating Gogo in June 2010. Six

2

months later, Shannon and her two children moved into an apartment complex across the street from her stepfather, Rollie Miller. Gogo lived with Shannon and her children on and off during their relationship, and he often watched and cared for the children when Shannon was at work or school. After Shannon and Gogo separated in 2013, Shannon and her children moved in with her mother, Penny Smith (Penny).^[1]

On March 12, 2015, J.H. told Shannon at Penny's house that Gogo had "touched" J.H. with "[h]is mouth." Shannon informed Penny of J.H.'s disclosure. On March 13, 2015, Shannon told Miller what J.H. said about Gogo. Miller called the police, and the responding officer instructed Shannon to fill out a statement form. Shannon and Miller then informally questioned J.H. about the event.

Two weeks later, J.H. sat for a formal child forensic interview. J.H. told the interviewer that when J.H. was five years old, Gogo told J.H. to come into the bedroom and get on the bed. J.H. said that they then removed their pants and engaged in oral sex with each other at Gogo's direction, which J.H. described and demonstrated, and that Gogo told J.H. not to tell anyone. J.H. also told the interviewer that "the same thing" happened on as many as five separate occasions, including once when T.H. was also in the room. The State then charged Gogo with three counts of first degree child rape against J.H. and a fourth count of first degree child molestation against T.H.

Prior to trial, the count involving T.H. was severed from the counts against J.H. The trial court also granted Gogo's pretrial motion to exclude and suppress

3

any statement or disclosure that Gogo had sexually assaulted T.H.^[2] The trial ended in a mistrial after the jury deadlocked. The trial court's pretrial rulings were then applied in a second trial. Similar to the first trial, the State's evidence consisted primarily of testimony from J.H., Shannon, Miller, and Penny. The State also played for the jury the video of J.H.'s forensic interview and elicited expert testimony from another child forensic interviewer. Gogo testified and denied the allegations. Gogo also presented expert testimony from a psychologist regarding the formation and reliability of children's memories.

A key difference between the two trials is that in the second trial, unlike the first, Penny improperly referred to Gogo's alleged sexual abuse of T.H. During Penny's testimony on the fifth day of trial, she initially had difficulty hearing the prosecutor's questions and seemed confused when attempting to answer those questions. To remedy this difficulty, Penny was given an assistive listening device. Shortly thereafter, the prosecutor questioned Penny about the night she first learned of J.H.'s initial disclosure of alleged sexual abuse by Gogo:

Q: At some point that evening did Shannon come into your room

A: Yes.

Q: And what happened?

A: She was very upset.

Q: Did she tell you anything?

A: She said that [J.H.] had disclosed something that was going on with Shannon's boyfriend.

4

Q: Do you remember exactly what Shannon told you?

A: That he had been fooling around with those kids and that she was just discombobulated.

(Emphasis added.) The italicized reference to "those kids," as noted previously, was a clear violation of the trial court's pretrial order excluding and suppressing any statement or disclosure that Gogo had sexually assaulted T.H.

Unfortunately, defense counsel did not immediately object to this improper testimony, and the prosecutor continued asking questions of Penny. Then, after five additional questions, defense counsel objected to both Penny's answer to the fifth question and Penny's earlier reference to Gogo "fooling around with those kids" as follows: "Objection, speculation and hearsay. I also have an objection that should be made outside the presence of the jury." The court sustained the objection to the later answer and asked defense counsel "does that address your concerns," to which defense counsel responded, "It addresses one of them. There is still another motion I need to be heard on outside the presence of the jury." Rather than allow defense counsel to be heard outside the presence of the jury, the court instead allowed the State to finish its direct examination of Penny and then asked defense counsel if she intended to conduct cross examination, to which defense counsel replied, "I may, but I first have a motion." Without explanation, the court then told Penny that her "testimony is done" and asked the State to call its next witness, T.H., without hearing defense counsel's motion. After T.H.'s testimony, the court excused the jury for lunch.

Once the jury was excused, defense counsel moved for a mistrial and

5

explained that Penny's testimony that Gogo "had been fooling around with those kids" violated the trial court's pretrial order excluding and suppressing any statement or disclosure that Gogo had sexually assaulted T.H. The trial court heard argument on Gogo's motion after the lunch break. The court did not rule promptly. Instead, it took the matter under advisement until the end of evidence presentation the following day, when it told the parties it would deny the motion- which it did the following morning.

In denying Gogo's mistrial motion, the trial court recognized that Penny's testimony "was a critical and serious irregularity in violation of the pretrial ruling," but concluded that it could be cured. Believing that a specific instruction to disregard the improper testimony would instead emphasize it, the court initially told the parties it would strike Penny's testimony entirely and have her retestify from the beginning subject to cross examination. The prosecutor and defense counsel disagreed with the trial court's proposed cure; both expressed concern that Penny would not be able to abide by the court's rulings if recalled as a witness. To avoid recalling Penny as a witness, the parties reached an agreement to stipulate to the facts that would have been elicited by Penny's testimony, which they presented to the trial court as the "least dangerous path."

The trial court accepted the parties' proposed cure. As a result, at the conclusion of the State's case in chief-two days after Penny's improper testimony that Gogo "had been fooling around with those kids"-the trial court instructed the jury as follows:

The testimony of the grandmother, Penny Smith, will be stricken from the record because in part it was appreciably and unfairly defective and hindered by her inability to clearly hear the

6

Prosecutor's questions. In its place a stipulation or agreement between the parties shall be entered regarding the testimony of Penny Smith. I'm going to read you that stipulation that will replace [the] testimony of Penny Smith.

The court then read to the jury the parties' stipulation of the facts that "would have been elicited from Penny," which omitted Penny's earlier reference to Gogo "fooling around with those kids."^[3]

This...