State v. O'Neel, No. 22916-5-III (WA 8/25/2005)

• Decision Date: 25 August 2005
• Docket Number: No. 22916-5-III,22916-5-III
• Court: Washington Supreme Court
• Parties: STATE OF WASHINGTON, Respondent, v. THOMAS J. O'NEEL, Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. THOMAS J. O'NEEL, Appellant.

No. 22916-5-III

Court of Appeals of Washington, Division Three, Panel Eight.

Filed: August 25, 2005

Appeal from Superior Court of Walla Walla County. Docket No. 03-1-00438-1. Judgment or order under review. Date filed: 04/12/2004. Judge signing: Hon. Robert L Zagelow.

Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.

Counsel for Respondent(s), Gabriel Eliud Acosta, Attorney at Law, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.

BROWN, J.

Thomas J. O'Neel was convicted of second degree burglary and first degree theft. On appeal he contends his trial was untimely, the trial judge improperly commented on the evidence, and insufficient evidence supports his convictions. We disagree, and affirm.

FACTS

In the early morning hours of October 1, 2003, Walla Walla police officer Kevin Bayne stopped an orange Datsun pickup truck driven by Grant Cobb for no taillights soon after a later reported burglary at High Speed Communications (High Speed). When approaching the truck, Officer Bayne's suspicions were aroused when he saw computer equipment in the back of the truck. The pair's explanations seemed to him contrived. He took the serial number of one item. The passenger, Mr. O'Neel, falsely identified himself. Agreeing to a search, Mr. O'Neel told the officer the equipment belonged to him, but seemed unfamiliar with the items. Exhibit 2 shows photographs taken by Officer Bayne of six items in the truck stolen from High Speed. Officer Bayne was called away to another stop, so he gave a warning and left without issuing a citation.

Officer Bayne quickly discovered the pair had given him false information. He located the truck with the passenger door open and the contents of the truck removed. Based upon his investigation, Officer Bayne suspected Mr. O'Neel and Mr. Cobb might be in Mr. Cobb's car. About two hours later, Officer Bayne spotted the car, stopped it, and arrested both men for obstructing. In the car, the officer found two-way radios, wire cutters, pliers, a computer tower, an external hard driver, and a backpack with computer equipment. Photographs of the items found were later admitted as exhibits in Mr. O'Neel's trial. Later in the morning, Officer Bayne connected the pair to the then reported burglary at High Speed located in the Marcus Whitman hotel.

Around 10:00 a.m. that same morning, Mr. O'Neel called his brother, Nathan `Nate' O'Neel from jail. During the recorded conversation, Mr. O'Neel made arguably incriminating statements later played for the jury. A search warrant executed the next day at Justin O'Neel's Walla Walla home produced computer items apparently connected to the High Speed burglary. Justin O'Neel is another of Mr. O'Neel's brothers. The jury learned Justin O'Neel pleaded guilty to possessing the stolen property.

Shannon Williams, the night security manager at the Whitman testified he saw an orange Datsun pickup truck in one of the hotel's parking lots early in the morning on October 1. The truck left with its lights off as he approached, and he followed. When the truck stopped, two individuals exited the truck and approached Mr. Williams. Mr. Williams took off and called 911 to report what he saw. Mr. Williams was unable to identify the individuals even though he knew Mr. Cobb.

Matt Carter, a High Speed employee, testified he let Mr. Cobb into High Speeds office and played computer games with him on the evening of September 30. According to Mr. Carter, the two left together at about 8:45 p.m. and went their separate ways. Mr. Carter saw Mr. Cobb with Mr. O'Neel around 11:00 p.m. at WalMart. Mr. Carter was fired from his employment for a `breach of security.' Report of Proceedings (RP) at 137.

Thomas Sawatzki, High Speed's President testified he fired Mr. Cobb some months before the burglary because he could not trust him after he learned Mr. Cobb was over-billing his work hours. Mike Glenncross, a High Speed employee, identified numerous items of property as belonging to High Speed from photographic exhibits of the items recovered by the police or unrecovered, including those photographed by Officer Bayne when he first stopped Mr. Cobb and Mr. O'Neel. The recovered items were valued by Mr. Glenncross at around $17,000 and some unrecovered items he valued at around $11,500. The computers showed High Speed's opening screen.

Related to his timely trial issue, Mr. O'Neel was arraigned on November 10, 2003 for second degree burglary and first degree theft. Trial was set for January 24, 2004. Mr. O'Neel was appointed new counsel on January 9, 2004 and January 14, 2004. Mr. O'Neel did not maintain contact with his attorney, so a warrant was issued for his arrest that occurred February 5, 2004. Also on that day, he was released and trial was reset for March 22, 2004. Mr. O'Neel unsuccessfully requested dismissal based on speedy trial violations on February 10, 2004. The court concluded the March 22 trial date was within the speedy trial time period because the commencement date for speedy trial under CrR 3.3(c)(2)(ii) was reset due to Mr. O'Neel's arrest and the disqualification of two of his attorneys. A joint trial with Mr. Cobb began on March 30, over Mr. O'Neel's renewed request for dismissal based on speedy trial violations.

Regarding the improper comment issue, the State called Dan Leeper, assistant general manager of the Marcus Whitman hotel and security head, apparently to pinpoint the entry times and explain how entry might have been gained to High Speed Communications, located on the hotel's fifth floor. Mr. Leeper, assisted by Exhibit 38, a computer printout, explained security card usage at elevators and doors, computerized tracking of access and exit points, stairway placements, external fire escapes, lower roof access to the external fire escapes, surveillance cameras, and the employment of security guards and janitors. At one point on cross-examination, Mr. O'Neel's counsel inquired, `Fifth floor hard to get into, easy to get out of, does that sum it up?' RP at 324. Mr. Leeper answered, `Yes.' RP at 324.

In redirect examination of Mr. Leeper, the State focused on a hotel dumpster and a hotel ladder found near the dumpster a day or two after the break-in. An item belonging to High Speed was found `on the top of our dumpster which is right by the ladder.' RP at 328. After 35 pages of direct and cross-examination of Mr. Leeper, the following colloquy occurred between the court and the witness:

THE COURT: Well, I normally don't do this, but it seems to me we have been ducking around here not asking some of the questions. So I'm going to, and I'm doing this, I want the jury to know, it doesn't have anything to do with these defendants. We know that place was robbed. We know that. Whether these people were responsible or not, we don't know. That's what you are going to figure out. But we know this place was robbed. Not only was it robbed, somebody walked out of there with many, many arm loads of stuff, not just a little bit, put in your pocket, a whole bunch of stuff went out of there. We know — well, it looks to me like the elevator wasn't involved here.

A. {MR. LEEPER:} I don't believe it was.

THE COURT: Right. Something was happening at 9:00. You know this building, there was some sort of interplay between some stairs and the fire escape. What was going on, in your opinion, what was happening there at 9:00? Because you said it takes 40 seconds to get to here, get back. What was going on between the fire escape and the stairs?

A. {MR. LEEPER:} Okay. I can't be for sure of what order they happened in, but someone was entering the building and either through a disabled door, that's what it looks like to me, and they were going across, and maybe letting some other participants in the other side is what it looks like was happening there to me.

THE COURT: Between where and where?

A. {MR. LEEPER:} Okay. It looks like someone came in actually the north stairs, maybe that latch was disabled or something, but they go directly, it takes 40 seconds to walk over to the fire exits, three, four, and five. Looks like they were open for four seconds the first time and then they are opened and closed real quickly, two seconds, to test like they have disabled that latch is what it looks like to me, that someone was testing. It is going to open fine from the outside. Then they go back over the north stairwell and go down the stairs. To return at 12:42 up the fire escape and in that door where they opened the door for up to 30 some minutes, and probably used that.

THE COURT: What door is open for 30 minutes?

A. {MR. LEEPER:} The one to the fire escape, one of the three doors to the fire escape on either the third, fourth or fifth floor was open from 2:42 to 1:19.

THE COURT: Okay. And we have heard talk about the lobby and stuff. Are people, would they be going down the fire escape or walk up through the lobby somehow?

A. {MR. LEEPER:} What they would do is carry equipment down to the second floor, or the first floor roof area, carry across the roof area to the back of the building. There is {sic} no people around. It is dark up there, nothing going on, carrying it down the ladder, and loading it in the vehicle, in the north parking lot.

THE COURT: And that doesn't really, we were talking about it being locked down on the bottom. If you did that, you didn't have to use that locked part?

A. {MR. LEEPER:} No.

THE COURT: You just get off the roof? Okay.

A. {MR. LEEPER:} Yes.

THE COURT: Now, I probably said more than I should.

RP at 330-32.

The next morning, based upon the above, Mr. O'Neel unsuccessfully requested a mistrial, arguing an unconstitutional comment on the evidence. The court reasoned:

I just thought there was some confusion. We had steps, and we had fire escapes, and we had elevators. It just wasn't...