State v. Jones

• Citation: 303 P.3d 1084,175 Wash.App. 87
• Decision Date: 04 June 2013
• Docket Number: No. 41902–5–II.,41902–5–II.
• Parties: STATE of Washington, Respondent, v. Martin A. JONES, Appellant.
• Court: Court of Appeals of Washington

175 Wash.App. 87

303 P.3d 1084

STATE of Washington, Respondent,

v.Martin A. JONES, Appellant.

No. 41902–5–II.

Court of Appeals of Washington, Division 2.

June 4, 2013.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Appellant.

John Christopher Hillman, Atty. General's Office, Criminal Justice, Seattle, WA, for Respondent.

PART–PUBLISHED OPINION

WIGGINS, J.P.T.¹

[175 Wash.App. 91]¶ 1 Martin A. Jones appeals his jury conviction for attempted first degree murder. Jones argues that his constitutional right to a public trial and his right to be present were violated when, during a court recess off the record, the trial court clerk drew four juror names to determine which jurors would serve as alternates. In light of our Supreme Court's recent public trial cases that make virtually any courtroom closure structural error, we agree with Jones that the trial court violated his public trial rights. Accordingly, we vacate his conviction and remand for a new trial.

¶ 2 In the unpublished portion of this opinion, we address Jones's other contentions. First, he challenges his conviction on the basis of improperly suggestive and unreliable photo identification procedures. Second, he argues that the trial court, in disallowing certain testimony and evidence, violated his constitutional right to present a defense. Finally, in a pro se statement of additional grounds (SAG),² Jones challenges his conviction for several other reasons. Unlike the public trial issue, we hold that none of these arguments presents reversible error.

FACTS

I. Factual Background

¶ 3 Early in the morning on February 13, 2010 in Long Beach, Washington State Patrol Trooper Jesse Greene pulled over a minivan driven by Susan Jones, ³ Martin Jones's wife, for driving in excess of the speed limit. Trooper Greene believed Susan Jones was intoxicated and began conducting field sobriety tests. During this time, Trooper Scott Johnson arrived as backup. Trooper Greene arrested Susan Jones for driving under the influence.

¶ 4 Trooper Johnson asked Susan Jones if there was someone available who would pick up the minivan, to which she replied “Marty” and provided a phone number. Trooper Johnson wrote “Marty” and the phone number on his hand. Trooper Greene then took Susan Jones to the Long Beach Police Department for processing. Shortly after being placed into custody, Susan Jones sent text messages to Jones informing him of her arrest.

¶ 5 Before leaving the scene, Trooper Greene requested a towing company to tow the minivan. Trooper Johnson began processing the minivan's contents until George Hill, owner of Hill Auto Body & Towing, arrived in short order.

¶ 6 As the minivan was being prepared for towing, Trooper Johnson noticed a white male approaching. This white male was visibly agitated and spoke to Hill, asking him what he was doing. Hill indicated that he was preparing the vehicle for towing. As the unidentified white male began walking away, Trooper Johnson contacted him and asked if he needed help with anything. The white male responded that he did not need help and continued walking away.

¶ 7 Trooper Johnson went back to processing the minivan's contents. Sometime later, Hill saw a white male approach Trooper Johnson from behind and grab him. Hill heard a gunshot and smelled gunpowder. The white male had shot Trooper Johnson in the back of the head. Trooper Johnson, still conscious, made eye contact with the man who shot him and returned fire. Hill also gave chase, but the man fired upon him; then, Hill returned to assist Trooper Johnson. Trooper Johnson watched the shooter flee.

¶ 8 Hill contacted the Washington State Patrol dispatcher, who notified law enforcement personnel. Long Beach police arrived and one of the officers took Trooper Johnson to Ocean Beach Hospital in Ilwaco. The physician who initiated treatment arranged for Trooper Johnson's transfer to Oregon Health Sciences University Hospital (OHSU) to ensure that Trooper Johnson had access to a trauma surgeon.

¶ 9 At the scene, investigating officers found one .22 caliber short cartridge casing where Trooper Johnson had been shot. The cartridge was stamped with the logo for Cascade Cartridge, Inc., an ammunition manufacturer.

¶ 10 Officers at the scene employed two K–9 units to track the scent from the shooting scene. One of these units led to the block on which Martin and Susan Jones resided. Police realized that the dog was approaching Susan Jones's home.

¶ 11 Police surrounded the Joneses' home. Jones exited the home and walked toward the beach. Police followed him and detained him at gunpoint. Jones told police that he was going for a morning walk on the beach and that he had been asleep all night. Police questioned Jones but released him during further investigation.

¶ 12 Meanwhile, Trooper Johnson recuperated at OHSU for about three days following the shooting. During this time he was shown several photographs of potential suspects in photomontages, as well as individual photographs. Trooper Johnson did not identify the shooter in any of these photos. Trooper Johnson began asking to see a photo of Susan Jones's husband, which officers eventually showed him. Trooper Johnson identified Jones as the shooter.

¶ 13 Following Trooper Johnson's identification, officers arrested Jones, who continued to claim he was at home asleep at the time of the shooting. Police obtained warrants to search his home and phone records. The phone records disclosed several phone calls exchanged between Jones and his neighbor in the early morning hours of February 13, 2010. A search of Jones's home disclosed a box of .22 caliber Cascade Cartridge, Inc. ammunition manufactured in 1999, which matched the .22 shell casing found at the scene of Trooper Johnson's shooting.

II. Pretrial Proceedings

¶ 14 The State charged Jones with attempted first degree murder. Jones was initially arraigned in Pacific County, but due to pretrial publicity, Jones requested a venue change. The court granted Jones's motion and transferred the case to Thurston County Superior Court. Jones filed an affidavit of prejudice against Thurston County Superior Court Judge Pomeroy. Unable to accommodate the trial in Thurston County following the affidavit, the case was transferred back to Pacific County. Pacific County Superior Court then transferred venue to Pierce County.

¶ 15 The parties exchanged several pretrial evidentiary motions. Jones planned to present evidence that Trooper Greene had observed a different white male walking past the minivan 40 minutes before the shooting, just after stopping Susan Jones. The State successfully moved to exclude this evidence as impermissible “other suspect” evidence.

¶ 16 Jones also moved to suppress Trooper Johnson's eyewitness identification or alternatively present expert testimony regarding the questionable reliability of eyewitness identifications. The court denied Jones's motion to suppress but allowed his expert to testify.

III. Trial

¶ 17 During trial, Jones sought to impeach the testimony of Sara Trejo, the Washington State Patrol Crime Lab's fingerprint analyst, with the e-mail of Chris Sewell, who had called the State's investigation “haphazard” and otherwise had criticized communication breakdowns among law enforcement agencies. The trial court denied the use of the e-mail for impeachment, concluding that the email was a collateral matter. Jones later sought to present the testimonyof Chris Sewell in his case-in-chief, but the court excluded this testimony as unduly prejudicial under ER 403.

¶ 18 At the conclusion of the evidence, the court indicated that the court clerk would randomly draw the names of four jurors from a rotating cylinder to determine which jurors would be alternates. During the defense's closing arguments, there was a court recess during which the court clerk randomly pulled four jurors' names. The court announced the names of the four alternate jurors following closing arguments and excused these jurors. Jones did not object to any aspect of the alternate juror drawing.

¶ 19 The jury found Jones guilty of attempted first degree murder and returned a verdict that included a firearm sentencing enhancement. Following the verdict, Jones moved for a new trial, claiming that the random drawing of alternate jurors violated his right to a public trial and right to be present and appear and defend. He also asserted that he should have been able to present evidence that another suspect shot Trooper Johnson. The trial court denied Jones's motions. Jones appealed.

ANALYSIS

I. Jones's Right to a Public Trial Was Violated Because the Drawing for Alternate Jurors Was Not Done in Open Court, Entitling Jones to a New Trial

¶ 20 The Sixth Amendment to the United States Constitution and by article I, section 22 of the Washington Constitution guarantee the right to a public trial. The state constitution also requires that “[j]ustice in all cases shall be administered openly.” Const. art. I, § 10. A defendant does not waive his public trial right by failing to object to a closure during trial. State v. Wise, 176 Wash.2d 1, 9, 288 P.3d 1113 (2012). “ ‘Whether a criminal accused's constitutional public trial right has been violated is a question of law, subject to de novo review on direct appeal.’ ” Wise, 176 Wash.2d at 9, 288 P.3d 1113 (quoting State v. Easterling, 157 Wash.2d 167, 173–74, 137 P.3d 825 (2006)).

[175 Wash.App. 96]¶ 21 Under our Supreme Court's recent guidance on the public trial right, we first determine whether a closure that triggers the public trial right occurred by asking if, under considerations of experience and logic, “the core values of the public trial right are implicated.” State v. Sublett, 176 Wash.2d 58, 73, 292 P.3d 715 (2012) (lead opinion). ⁴ If there is a closure, we look to whether the trial court properly conducted a Bone–Club⁵ analysis before closing the courtroom. State v. Paumier, 176 Wash.2d 29, 35, 288 P.3d 1126 (2012); ...