State v. Maddaus

Decision Date20 September 2013
Docket NumberNo. 41795-2-II,41795-2-II
PartiesSTATE OF WASHINGTON, Respondent, v. ROBERT JOHN MADDAUS, Appellant.
CourtWashington Court of Appeals

HUNT, J. - Robert John Maddaus appeals his jury trial convictions for first degree felony murder, first degree attempted kidnapping, second degree assault, and four counts of witness tampering; he also appeals his Persistent Offender Accountability Act1 (POAA) life sentence and the firearm sentencing enhancements for his murder, attempted kidnapping, and assault convictions. He argues that (1) the warrant-based search of his residence was illegal; (2) the trial court violated his due process rights by allowing him to be restrained during trial; (3) the trial court committed several evidentiary errors2; (4) his counsel rendered ineffective assistance forseveral reasons3; (5) some of the trial court's jury instructions were erroneous4; (6) the State committed misconduct during closing argument5; (7) his two witness tampering convictions constituted double jeopardy, with insufficient evidence to support one of them; and (8) several sentencing errors warrant resentencing.6

In his Statement of Additional Grounds (SAG), Maddaus asserts that (1) the trial court erred in denying his request for new appointed counsel; (2) the trial judge was unfairly biased against him; (3) the State committed prosecutorial misconduct by displaying a Microsoft Power Point slide containing a photograph of Maddaus wearing a wig, with a circle and a slash superimposed over it and the word "GUILTY" written beneath it, CP at 978 ; and (4) cumulativeerror violated his right to a fair trial.

We remand to the trial court to vacate and to dismiss either Count VI or Count VII (both witness tampering) with prejudice. We affirm Maddaus's other convictions and sentencing enhancements.

A. First Degree Murder; Second Degree Assault

In the evening of November 13, 2009, Jessica Abear was sleeping in Maddaus's residence when a group of three to four persons kicked down the door and entered. One of the intruders ordered Abear to "[f]reeze" and held a gun to her head. 7 Verbatim Report of Proceedings (VRP) at 647. The intruders stole roughly $140,000 in drugs and cash.

When he returned home and learned about the robbery, Maddaus appeared "in a rage" and suspected that Abear had been involved. 7 VRP at 653. Attempting to elicit a confession, he hit her on the head with the butt of a firearm, sprayed her three times with mace, ripped off her clothes, and shot her ten times with a paintball gun. Maddaus then pointed the firearm at Abear's foot and threatened to shoot; but when he pulled the trigger, the firearm did not discharge. Abear told Maddaus that she thought his drug supplier might be a suspect in the robbery. Maddaus called his supplier, relayed what Abear had said, and mentioned that he (Maddaus) needed to "find someplace for [Abear] to go so that they [(Maddaus and his supplier)] could get the information out of [her]" and that he (Maddaus) "was going to torture it out of [her]." 7 VRP at 656. Abear managed to run out and take shelter in a neighbor's house until she was able to leave safely.

The next day, Maddaus discovered a tape recording that contained a recorded phone conversation of the persons involved in the robbery. Although most of the voices were unrecognizable, Maddaus believed that one was Shaun Peterson. Late the next evening, November 15, Maddaus met with Peterson and several friends (Matthew Tremblay, Jesse Rivera, Daniel Leville, and Falyn Grimes) to question Peterson about his involvement in the robbery. Peterson was handcuffed, and Maddaus was armed with a firearm and a knife. Nobody else was armed. While questioning Peterson, Maddaus played the recorded phone conversation. Peterson eventually walked out the front door; Maddaus followed him outside, after which Maddaus's friends reported hearing five rapid gunshots. Immediately following the shots, Matthew Tremblay saw Maddaus standing outside, pointing a firearm at Peterson, who ran a short distance before collapsing on the ground.

Early the following morning, November 16, Olympia police responded to a report of gunshots. They found Peterson on his back, having bled to death from multiple gunshot wounds. Police found four empty bullet casings and a cell phone near Peterson's body. The cell phone began to ring; the caller identified herself as Randi Henn, Peterson's girlfriend. Henn told the police that Peterson was involved in selling methamphetamine, that his drug source was Maddaus, and that Maddaus had recently been robbed and had asked to meet Peterson that night.

Several days later, police arrested Tremblay, who was believed to have been involved or to have knowledge about Peterson's murder. Tremblay told the police that (1) as he was placing items into Maddaus's vehicle, he had seen Peterson speaking with Maddaus outside the house and they had begun to argue; (2) Maddaus fired roughly five rounds from a firearm; (3) as the firing stopped, Tremblay looked up and saw Maddaus pointing a smoking firearm at Peterson;(4) Tremblay and Maddaus fled to Josephine Lundy's residence, where they unloaded items into a large metal shipping container; and (5) Tremblay did not know what happened to the firearm that Maddaus had used to kill Peterson.

Tremblay later took the police to Lundy's property, where Lundy consented to a search of her residence and property; nothing of evidentiary value was found. Lundy also confirmed many of the details that Tremblay had provided, including that Maddaus had contacted Lundy in the early morning on the 16th of November.

Emerald Akau, who had been recently dating Maddaus, also spoke with police. She confirmed Maddaus's home address and stated that she had spent the night with him at his residence on the evening of November 16, the night after the murder.

The police obtained a search warrant for Maddaus's residence based on the information obtained during their investigation. This warrant authorized the police to search for: "[A]ny firearms, to include handguns, packaging for handguns, spent casings, new bullets, packaging for bullets," any "paintball guns, paintballs, marbles or items associated with paintball guns," and "handcuffs." Clerks Papers (CP) at 9. Executing the warrant, police found a paintball gun, a handgun and ammunition, and a set of handcuffs. They also detected the faint odor of pepper spray.

Meanwhile, Maddaus had acquired a wig and a false passport bearing the name "Chad Walker Vogt" and a photo of himself wearing a blond wig. 17 VRP at 2003. When asked why he had the wig, he stated, "Because I knew there was a warrant out for my arrest. The police wanted to talk to me. I didn't want to talk to them." 15 VRP at 1868. The police found this wig in Maddaus's vehicle when they arrested him.

B. Witness Tampering

Theodore Farmer had worked with Maddaus selling methamphetamine. After Farmer was caught carrying methamphetamine in November 2009, he provided Maddaus's name to the Thurston County Drug Task Force, became an informant, and agreed to perform three controlled buys from Maddaus. On November 14 or 15, Farmer called Maddaus to purchase methamphetamine, but Maddaus did not answer. Maddaus called Farmer back later and stated, "I can't talk. I'll either be—I'll talk to you in person, or either that, or I'll be in jail." 10 VRP at 1240-41.

While awaiting trial in jail, Maddaus repeatedly telephoned his niece Chelsea Williams, Grimes, Leville, and Farmer, whom he called three times, to establish a false alibi. The jail actively monitored these calls.7 During a three-way phone call with Williams and Farmer, Maddaus stated, "Here's the deal, right? These F***ing phones are recorded all the way." 11 VRP at 1476. Although Farmer initially agreed with Maddaus to provide false testimony, Farmer later changed his mind and contacted the police.8


The State charged Maddaus with first degree murder (alleging both premeditation and felony murder),9 first degree attempted kidnapping, second degree assault of Abear (assault with a deadly weapon), and four counts of witness tampering (two based on his contacts with Farmer from the jail).10 The first degree murder, attempted kidnapping, and assault charges each carried a sentencing enhancement allegation that "[Maddaus] was armed with a deadly weapon, a firearm." CP at 21-22.

A. Pretrial Motions
1. Search warrant; motion to suppress

Maddaus moved to suppress the search warrant of his residence, arguing lack of probable cause to authorize a search for firearms.11 The trial court denied the motion, ruling that there was a sufficient nexus between the firearm sought and Maddaus's residence.

2. Maddaus's letter

Several weeks before trial, the State received a letter through the mail with no return address. The prosecutor's receptionist opened the letter, reviewed it, and determined that it appeared to be correspondence from Maddaus to his defense attorney. The prosecutor's officeprovided a copy of this letter to Maddaus's counsel. Maddaus alleged governmental misconduct, namely that someone at the jail had copied and mailed the letter to the prosecutor's office.12

Maddaus moved to continue the trial, to conduct a formal hearing to investigate how the letter came into the State's possession, and to dismiss. The prosecutor's sworn declaration in opposition stated:

I directed . . . the receptionist . . . to not discuss with anyone whatever contents (of the letter) he may have seen, and to make a copy and dispatch it to defense counsel. I further directed that the original be kept, sealed, in the office until further order. I have not read what may or may not be a letter, or copy of a letter, written to [Maddaus's attorney].

CP at 283. At the hearing on Maddaus's motion, the prosecutor further explained,

I told [the mail handler] I don't want to see it. I don't want to hear about it. Don't talk to anyone

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