State v. Jimerson

• Decision Date: 26 April 2021
• Docket Number: No. 77789-1-I,77789-1-I
• Parties: STATE OF WASHINGTON, Respondent, v. CLEANTHONY JIMERSON, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. CLEANTHONY JIMERSON, Appellant.

No. 77789-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 26, 2021

UNPUBLISHED OPINION

SMITH, J. — In March 2013, a crowded bar in Auburn, Washington, had just announced last call, ushering hundreds of individuals into the parking lot. That night, following what was later described as a brawl, three individuals, including Lorenzo Duncan and Nick Lindsay, were shot and killed, and Cleanthony Jimerson was shot and paralyzed.

In 2015, the State charged Cleanthony¹ with two counts of first degree murder for the fatal shooting of Duncan and Lindsay. After a hung jury in the first trial, Cleanthony was retried, and the jury convicted him of two counts of the lesser included offense, second degree murder, both with firearm enhancements. Cleanthony timely filed an appeal, alleging a number of errors. However, while this appeal was pending, Cleanthony died in custody in December 2019, and hismother now appeals in his place.

Cleanthony challenges a number of the trial court's orders and findings. While we agree that the trial court erred when it denied his motion to suppress illegally obtained personal belongings, we conclude that the error was harmless. And we conclude that his other challenges are without merit, except that the trial court improperly imposed a DNA (deoxyribonucleic acid) collection fee. Therefore, we remand to the trial court to strike the fee.

FACTS

On March 30, 2013, hundreds of people gathered at the Sports Page bar in Auburn, Washington. Cleanthony and his family and friends, including his girlfriend Kathleen Kovach, his mother Carolyn, his brother Cleden Jimerson, and his cousins, Nicholas² and Ricky Pierce and Javon (Do-Do), met at the bar for Cleden's going-away party. Also at the bar, Clarence Whiting celebrated his birthday with a group of friends, including Tiffany Johnson, the mother of Whiting's children, Duncan, Lindsay, Michael Simmons, Malcom Jones,³ Sam Henderson, and Xavier Ragland. Sharelle Little, Ciarra Beaver, and her brother, Nevante Chaney, were at the bar, as well, and ended up spending time with Whiting's friend group.

At some point in the evening, Johnson confronted Whiting for dancing with Little. While confronting Whiting, Johnson accidently bumped into Little andstepped on Little's "new shoes."

At around 1:40 a.m. following last call, the bar's security guards ordered everyone to leave. As everyone exited the bar, a convoluted series of events unfolded involving a multitude of individuals and witnessed by the hundreds of patrons exiting the bar. To this end, at trial, there was conflicting testimony from many witnesses.

In the parking lot, Little and Ragland fought, cursing at one another. Chaney and another person, later identified as Cleden,⁴ who was wearing a white t-shirt came up behind Little and began defending her. Malcom joined Ragland. A crowd, including someone in "a striped Polo," formed around the group as they argued. Beaver testified that the Polo looked like it had orange and blue stripes.⁵ Malcom punched Cleden, beginning "a brawl." Many more individuals became involved in the fight: running, punching, and yelling at one another. Lindsay, who had tattoos and was wearing a tank top, also ran "towards the fight to figure out who he was going to fight." Beaver testified that the man in the striped polo ran away as he yelled back to Chaney and Cleden to get the person with the tattoos and another individual in a white shirt.

Ragland testified that at one point, he saw a few individuals "jumping" Lindsay. Ragland "heard shots fired" and "ducked in between cars." When he"looked up to see where it was coming from," he testified that Malcom was holding a pistol, pointing it towards the ground. But Ragland testified that he never saw Malcom fire his gun. Ragland then ran to his car to retrieve his gun and returned to where Lindsay had been. He saw someone "walking down the middle of the parking lot . . . holding a pistol." The person with the gun did a "sweeping motion" with his gun, and Ragland ducked behind a car. When he stood back up, he "saw [Lindsay] on the ground and the guy standing over him," and "that's when [he] shot towards the guy standing over" Lindsay, believing the person was going to shoot Lindsay. At trial, he testified that he had previously described what the man was wearing "differently on a couple different occasions" but that he could no longer recall what the man was wearing.⁶ Ragland also told police that he had fired 7.62 x 25 mm Tokarev ammunition from a CZ 52 handgun.⁷ The same caliber casings were later discovered near a car in the parking lot.

Another witness, Danielle Psachos, after refreshing her recollection with her prior statement to the police, testified that she saw a "'heavy-set'" man with "'short dreads in his hair'" fall to the ground, while someone with a silver gun stood over him. She testified that she saw the man "take the gun and put it to [the other man's] head," and then she "saw the fire from the gun." Psachos testified that the shooter was a black skinny male with short hair. Another witness, Alissa Garza, testified that the shooter was "a little bit husky" with awhite "Polo type shirt with stripes."

Henderson also testified that he saw someone "standing over [Lindsay] shooting." Henderson testified that after the man shot Lindsay, he saw Duncan "come to help" him, but that Duncan quickly turned and ran away. Henderson testified that, as Duncan ran away, he saw "another flash" and that it looked like the man shot Duncan. Then, as Duncan "fell and started crawling," the shooter allegedly "walked up on him," and "[i]t looked like he shot [Duncan] again." Henderson testified that, after shooting Duncan again, the shooter suddenly fell over. Gunshots were still "going on everywhere" and from "[a]ll over the place." Beaver testified that she heard a total of "[m]aybe . . . 30, 40" gunshots that night.

Kovach testified that, as she was running towards her car, she heard gunshots and saw Cleanthony "laying [sic] next to the car" and that he "had been shot." Kovach, Nicholas, and Cleden put Cleanthony into Nicholas's car and drove him to the hospital. At the hospital, a bullet consistent with Ragland's gun was removed from Cleanthony's back.

Lindsay and Duncan died in the parking lot that evening. Another individual in the parking lot, Antuan Greer, also died from a gunshot wound.

Around 2:15 a.m., Auburn Police Detective Robert Jones arrived at Auburn Regional Medical Center to investigate a gunshot victim. There, Detective Jones and Officer Andrew Lindgren spoke with Kovach, Cleden, Nicholas, and Carolyn. Medical staff informed Detective Jones that Cleanthony was receiving medical treatment for his gunshot wounds and that once "he was stabilized, he would be sent to" Harborview Medical Center. The staff then"directed" Detective Jones to Cleanthony's personal belongings in his private emergency examination room.

While Cleanthony's room was unlocked and unoccupied, Detective Jones found Cleanthony's clothing in a dark green, opaque bag labeled personal belongings, which was under Cleanthony's hospital gurney or bed. He later testified that he believed the bag contained clothing based on his "personal experience" and because "you can practically see through the thing." The bag contained Cleanthony's polo shirt, a white tank top, his wallet, and his shoes.

Following the incident, the police found bullet casings from multiple different firearms in the bar's parking lot.⁸ A medical examiner found one gunshot wound at the tip of Lindsay's left shoulder. They also found that Duncan was shot "[o]n his right cheek just below the eye" and on the left side of his chest. The medical examiner recovered a bullet from the latter gunshot wound. At trial, Kathy Geil, a ballistics expert, testified that the bullet fragments in both Lindsay and Duncan were consistent with having been fired from the same "44 caliber class" gun.

In its investigation, the police interviewed many individuals. During a photographic montage, which included an image of Cleanthony, Ragland was unable to identity anyone that he saw firing a gun that evening; Henderson identified Ragland as someone shooting a gun that night but could not identify anyone else from the photographic montage. Henderson, however, provided astatement alleging that the shooter was a black male between the age of 23 and 28, around six feet tall, slender, with short hair and little to no facial hair, and that he wore a navy blue and yellow polo. And at trial, the State called Detective Nix to testify that Cato White, an individual drinking at the Sports Page bar the night of the incident, had identified Cleanthony in a montage as the person who shot Lindsay and Duncan, telling the officers that Cleanthony wore a yellow and black striped polo shirt.

On April 25, 2013, Detective Nix interviewed Cleanthony at Harborview Medical Center. Cleanthony stated that, when the bar closed, he saw a confrontation beginning in the parking lot and "scrambl[ed]" to find his mother and older cousin and get them into their vehicle. He recalled that while looking for his girlfriend and little brothers, he heard gunshots. "And in the midst of that [his] legs went numb." He then "crawled . . . with just arms to" his and his cousin's cars. Cleanthony stated that the bullets came from behind him.

After years of investigation, in April 2015, the State charged Cleanthony with two counts of murder in the second degree. At the time, Cleanthony was in Georgetown, Texas, visiting his family. The King County Prosecutor's Office procured a nationwide extradition warrant, which it sent to the Texas police. Detective Nix called Cleanthony and alleged that she was a crime victim compensation staffer and that she needed Cleanthony to fill out outstanding paperwork. When he arrived at the agreed upon location, United States marshals arrested...