State v. Kennon

Decision Date16 August 2021
Docket Number80813-3-I
CourtWashington Court of Appeals
PartiesSTATE OF WASHINGTON, Respondent/Cross-Appellant, v. DARRYL WILLIAM KENNON, Appellant/Cross-Respondent.

UNPUBLISHED OPINION

SMITH J.

Darryl Kennon appeals his felony convictions for first degree burglary, four counts of felony violations of court orders and second degree assault all with a domestic violence aggravator. Kennon alleges that he was denied the constitutionally required presumption of innocence when the trial court allowed additional security officers in the courtroom while the victim testified, that his counsel was ineffective by failing to request the instruction for the lesser included offense of third degree assault, and that the court violated his fundamental rights when it entered a lifetime prohibition of his contact with his children. The State cross appeals, asserting that the trial court erred when it declined to sentence Kennon as a persistent offender under the Persistent Offender Accountability Act (POAA), part of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.

We conclude that the presence of three uniformed officers was neither inherently prejudicial nor an abuse of discretion and that Kennon's counsel was not ineffective when they did not request an instruction for third degree assault. However because the court provided no reason for prohibiting Kennon's contact with his children for life, we remand for the court to determine whether the infringement on Kennon's rights is reasonably necessary to protect the children from harm and, if so, to narrowly tailor the orders in duration and scope. Finally, because a sentencing court lacks the authority to ignore the mandate under the POAA, the trial court erred when it declined to impose a life sentence. We remand for resentencing.

FACTS

Darryl Kennon and Zotica Kennon[1] married in 2003 and separated in 2016. In 2017, Zotica sought domestic violence protection orders against Kennon protecting Zotica and her and Kennon's three children, K.K, 13 years old, M.K., 9 years old, and V.K., 7 years old. The court granted Zotica's request and entered a domestic violence protection order protecting Zotica and her three children. Pursuant to the order, Kennon was allowed to see his children every other Saturday. However, Zotica allowed Kennon to see the children at other times. The couple divorced in March 2018.

On April 5, 2018, Kennon came to Zotica's home, and Zotica let him in. They spoke while the children were present. Following this incident, in July 2018, Kennon pleaded guilty to violating the 2017 order. The violation resulted in four domestic violence no-contact orders, which revoked Kennon's ability to see his children. Nonetheless, Zotica allowed Kennon to continue to see the children, and Kennon took them on a camping trip on August 10, 2018.

On August 14, 2018, Kennon repeatedly called Zotica on the phone while she was at work, angry about her allegedly seeing someone new and concerned that she was leaving the children home alone. Zotica testified that Kennon called her "283 times." Zotica left work because she was "too nervous" and began cleaning her house. Kennon's calls continued, and Zotica called the police after she told him to stop calling her.

At around 4:00 p.m. that day, Kennon entered Zotica's apartment while the children were present. The door was open. Zotica was in her roommate's room. V.K. saw Kennon in the hallway and went out to speak with him. He asked where Zotica was, and V.K. told him. Kennon entered the roommate's room, and Zotica testified that he pushed her in the stomach. Kennon, on the other hand, testified that he "just tapped her and said, hey, you called the police on me?" They exited the bedroom and went to the kitchen. Kennon was asking Zotica "[q]uestions like, did you call the police on me?" Zotica admitted that she did, and Kennon "got upset[, ] and . . . he hit her." Zotica testified that Kennon pushed her and "tried to hit [her] face with his head," but she was able to avoid the contact.

V.K stated that, at this time, she and her siblings "all started crying" and "were telling him to stop it." Kennon pushed her, pinned her in the laundry room area, and then hit her eye "with his head." She testified that she saw "something red in [her] eye," and blood began coming from her mouth and nose. Kennon testified, "I slapped her in her face . . . with my right hand." He alleged it was an open-handed slap and that he did it with his nondominant hand.

Zotica testified that Kennon told her that "he was going to kill [her]," and Zotica begged for her life, asking him not to kill her "in front of the kids." Zotica testified that he then reached into his pocket and retrieved "a sledgehammer." Kennon testified that Zotica "reached under the kitchen sink, and pulled out the hammer." Kennon testified that he raised the hammer over his head, to try to "pull[ ] it away from her." K.K. threw something at Kennon's back to try and get him to stop. And Zotica grabbed the hammer and ran out of the house to the apartment complex parking lot.

At this time, V.K. testified that she and her siblings left the house and began screaming for help because they "didn't want [their] mom to get hurt." Simultaneously, Zotica was running around a vehicle, and Kennon was chasing her. Kennon testified that he "was trying to get her to stop[, ] . . . [a]nd if she would have stopped, [he] probably would have had the opportunity to apologize for hitting her in the first place." Zotica eventually dropped the hammer. She testified that Kennon picked it up and threw it at her and then was "reaching in [his] truck" for a baseball bat.

After multiple neighbors noticed the altercation and began calling the police, Kennon got into his car and, according to V.K.'s testimony, was "trying to drive away." At some point, K.K. had gone inside the house, retrieved a knife, and "was stabbing [Kennon's] [vehicle's] window shields" as Kennon drove away. Zotica believed he was trying to run her over with his truck. Zotica ran away from the apartment complex and got into the vehicle of a woman she saw driving. She ended up in an office near her apartment, "[u]nder the office table" where the police found her when they responded to the scene. Zotica was transported to a nearby hospital and treated for her injuries. She sustained an orbital wall fracture. Kennon testified at trial that he had "no idea" what fractured the orbital bone in Zotica's face.

The State charged Kennon with seven domestic violence felonies first degree burglary (count 1), four counts of felony violation of a court order (counts 2 through 5), second degree assault with a deadly weapon (count 6), and second degree assault by reckless infliction of substantial bodily harm on Zotica (count 7).

Trial began on August 7, 2019. Prior to her testimony, Zotica requested that an additional officer be present. She had "concerns for her safety" and noted that Kennon previously had an "outburst in court and [made] some sort of threats to the judge in that case." Neither the State nor the court independently verified this information. Detective Gerald Gee also had concerns about a phone call Kennon made to his sisters from jail. During the conversation, one of Kennon's sisters said, "[A]re you sure about that other thing and do you want to talk to your brother first?" The State was unsure what the conversation was in reference to but thought that it might be regarding its conversation with Kennon's brother "about potential alternatives to a life in prison sentence upon conviction." Because of this conversation Detective Gee also asked the State if it would request an additional officer.

Based on Zotica's and Detective Gee's requests, the State asked the court if an additional officer could be present while Zotica testified. The parties and the court agreed that "Kennon has certainly behaved in an exemplary manner during pretrial and trial proceedings." And the court noted that there were already two officers in the courtroom, "which is somewhat unusual" and that Detective Gee also would be present for some of the testimony.

Nonetheless, the trial court granted the State's request to seek an additional officer, thereby allowing three uniformed officers in the courtroom and Detective Gee in plain clothes. The court ruled: "I'm going to allow it because I have reason to believe that [Zotica] is feeling traumatized and will feel very traumatized at the time that she has to openly confront Mr. Kennon. And I think that outweighs any danger of unfair prejudice to Mr. Kennon." The court asked Kennon if he would like a limiting instruction, but Kennon declined, not wanting to draw more attention to the issue.

At one point, immediately following a recess during Zotica's testimony, a fourth uniformed officer was present in the courtroom. When defense counsel noted their presence, they requested a recess to discuss the matter outside the presence of the jury. Defense counsel noted that "there are jail officers lurking behind the prosecutor's table, and one . . . was standing about 10 feet behind defense table." Realizing that the fourth uniformed officer's presence was a mistake, the court dismissed the additional officer. The jury returned to the courtroom with the three officers and Detective Gee present.

Following testimony from Zotica, all three children, and Kennon, among other individuals and experts, the jury found Kennon guilty of first degree burglary, four counts of violation of a court order, and second degree assault by reckless infliction of substantial bodily harm all with domestic violence aggravators. The jury acquitted Kennon of second degree assault with a deadly weapon.

At sentencing, the State offered...

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