State v. Heeren

• Decision Date: 15 February 2022
• Docket Number: 53767-2-II
• Parties: STATE OF WASHINGTON, Respondent, v. CHRISTOPHER MARTIN HEEREN, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. CHRISTOPHER MARTIN HEEREN, Appellant.

No. 53767-2-II

Court of Appeals of Washington, Division 2

February 15, 2022

UNPUBLISHED OPINION

Lee C.J.

Christopher Heeren appeals his convictions, arguing that (1) the prosecutor committed misconduct by using voir dire to commit jurors to a verdict and by testifying at trial, (2) he received ineffective assistance of counsel because his attorney failed to timely object to the prosecutor's hypothetical questions during voir dire, (3) the trial court erred by denying his motion to dismiss certain jurors for cause, and (4) cumulative errors produced a trial that was fundamentally unfair to him.

We hold that the prosecutor did not commit misconduct; Heeren did not receive ineffective assistance of counsel; the trial court erred in denying Heeren's motion to dismiss certain jurors for cause, but the error did not cause prejudice to Heeren; and cumulative errors did not produce a trial that was fundamentally unfair to Heeren. Accordingly, we affirm Heeren's convictions.

FACTS

The State charged Heeren with first degree felony murder while armed with a firearm, first degree robbery while armed with a firearm, first degree burglary while armed with a firearm two counts of first degree unlawful possession of a firearm first degree trafficking in stolen property conspiracy to deliver methamphetamine while armed with a firearm, two counts of theft of a firearm, and possessing a stolen firearm.

Heeren had previously been convicted of first degree robbery, a serious offense, so he was not permitted to possess firearms. The State's theory of the case was that Heeren stole two guns from his half-brother's roommate, sold one, and used the other gun to kill Shaddie Graham, who Heeren then took drugs and money from. These incidents came about in the course of Heeren's attempts to acquire and sell drugs.

A. Voir Dire and Motion to Dismiss Jurors for Cause

During voir dire, the prosecutor asked a series of questions about circumstantial evidence.

The prosecutor started by asking:

I mean you wouldn't want to take someone with you while you're committing a crime or do it in front of a whole bunch of people. It does happen. Let's be honest about that, but there's a lot of cases that are circumstantial and that you have to put many facts together. Are you all-and I'm not asking this of you about the facts of this case-but are you all okay with that two different kinds of concepts of evidence, and you, as jurors, get to decide how much weight to give them and how much credibility to give them? The judge is going to tell you one is not better than the other. That's your decision as jurors to make that decision. Are you all comfortable with that decision? Is there anyone who feels uncomfortable, if it didn't happen on videotape and there weren't 700 witnesses, I just don't think I could ever make a decision? Does anyone feel that way?

2 Verbatim Report of Proceedings (VRP) (Apr. 16, 2019) at 227-28.

The prosecutor then asked a series of questions based on a hypothetical fact pattern. As the prosecutor added hypothetical facts to the scenario, the prosecutor paused and asked individual jurors what they were thinking. In this hypothetical fact pattern, the prosecutor asked jurors to imagine coming home from work and seeing a white van pull out of their driveway and take off at a high rate of speed. The prosecutor then asked jurors to imagine entering the house seeing the back sliding glass door open, and seeing some drawers pulled out in the bedroom. The prosecutor asked jurors to imagine seeing that their gold jewelry and 70-inch state-of-the-art, brand new TV are missing. The prosecutor then asked jurors to imagine calling the police and the police pulling over a white van and seeing a 70-inch state-of-the-art, brand new TV in the back. The prosecutor then added that the serial number from the TV in the white van matched the juror's missing TV. The prosecutor then asked jurors to imagine the police searching the white van driver and finding gold jewelry in his pockets. Finally, the prosecutor asked jurors to imagine the driver's brother showing up and saying, "[O]h yeah, my brother is arrested, he has been having a hard time, he doesn't have a job, he has been using drugs, things of that nature. He actually told me that he was pretty desperate right before this happened." 2 VRP (Apr. 16, 2019) at 237.

During the presentation of serial facts, the prosecutor asked how suspicious the jurors were of the white van and how certain they were that the white van driver was involved in the disappearance of the TV and jewelry. At the end of the fact pattern, the prosecutor asked the entire venire, "How many people think he is guilty? Raise your hand if you think he is. How many people think he is not guilty? Is there anyone?" 2 VRP (Apr. 16, 2019) at 237-38. The prosecutor then explained that he had gone through a circumstantial case and asked, "Can you all assure me that you are open to doing something like that, putting little facts together when considering this case? Is there anyone that feels uncomfortable with that?" 2 VRP (Apr. 16, 2019) at 238.

Heeren's attorney did not object to the prosecutor's hypothetical questions. During the defense's voir dire, Heeren's attorney reminded the venire about this same hypothetical fact pattern used by the prosecutor. Heeren's attorney then provided the venire with additional hypothetical facts, like a three-day gap in time between the burglary and the white van being pulled over, as well as multiple people having access to the van. Heeren's attorney then asked the jurors if they would change their minds about the guilt of the man in the white van. Several jurors indicated that these additional facts would change their minds about the white van driver's guilt or change the way they thought about the hypothetical fact pattern.

At the conclusion of voir dire, Heeren's attorney moved to dismiss certain jurors who would have found the hypothetical white van driver guilty. Heeren's attorney asked the trial court to dismiss for cause jurors 19, 20, 21, 22, 23, 29, 31, 32, 36, 43, 44, 46, 60, 61, 62, 65, 69, 70, 77, 79, 80, and 81. While making this motion, Heeren's attorney apologized for failing to object because he did not see where the line of questions was going to end up. Heeren's attorney argued that the jurors should be removed for cause because of the prosecutor's use of "stakeout" questions and the jurors' responses to the questions.^[1] 1 VRP (Apr. 17, 2019) at 87. The prosecutor opposed the motion, arguing that his hypothetical questions were not improper and that the proper remedy would be to dismiss the entire venire. The trial court denied Heeren's motion, stating that it would

deny the motion in part because it was not objected to at the time. To be honest, I was aware of the potential objection that might have been raised. I am aware of the case law, or at least the general principles regarding getting a jury pool to commit pretrial, pre-evidence. I'm not finding that this violated that, nor am I deciding it- well, I just won't go there. I won't decide this violated that. I think [the prosecutor's] characterization of what he was doing makes it less-far less clear than the principles that I'm familiar with in terms of getting a commitment from a jury pool in a particular set of facts that mirror the facts of the case. I will leave it at that. . . . Motion denied.

1 VRP (Apr. 17, 2019) at 88-89.

The parties then exercised their peremptory challenges. Heeren exercised five of the six peremptory challenges he was entitled to use.

B. Trial

As relevant to this appeal, witnesses testified at trial to the following.

Heeren and his half-brother lived in trailers next to each other on the same property. Heeren's half-brother shared his trailer with a roommate. On September 1, someone stole two firearms belonging to Heeren's half-brother's roommate from his trailer. Law enforcement went to the trailer to investigate the burglary. Law enforcement eventually collected unused and spent ammunition from one of the stolen firearms.

Heeren subsequently sold a gun matching the description of one of the stolen firearms. And later in the month of September, Heeren conspired with several other individuals, including Graham, to acquire and sell drugs, including methamphetamine. After some of Heeren's drug dealing plans fell through, Heeren owed money to someone.

On September 28, Heeren went to Seattle with several other individuals and met up with Graham so they could purchase drugs together. Graham had the money to make the purchase. That evening, Heeren gave one individual $300 to purchase 21 or 22 grams of methamphetamine. This individual did not know whether the money originally came from Heeren or Graham. During the evening, Heeren had a smaller caliber, black, semi-automatic handgun, which matched the description of the other firearm that had been stolen from Heeren's half-brother's roommate.

Graham stayed the night at Heeren's trailer starting in the early morning hours of September 29. In those early morning hours, Heeren texted an acquaintance: "My home boy got close to a oz, he sleeping at my house so i can make sure i have access to it."^[2] Trial Ex. 379 at 4.

Later that day, a trail runner found Graham's body with three gunshot wounds at a park near Heeren's trailer. No one witnessed the murder, but two bullets were recovered from Graham's body during the autopsy and a third spent shell casing was found at the scene where Graham's body was found. Using the ammunition recovered from Heeren's half-brother's roommate's trailer, the Washington State Patrol Crime Laboratory determined that the bullets in...