State v. Roach

Decision Date21 June 2021
Docket NumberNo. 82053-2-I,82053-2-I
Citation489 P.3d 283
CourtWashington Court of Appeals
Parties STATE of Washington, Respondent, v. Johnny Orin ROACH, Appellant.

Nielsen Koch PLLC, Attorney at Law, Eric J. Nielsen, Christopher Gibson, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.

Sara I. Beigh, William J. Halstead, Lewis County Prosecutors Office, 345 W Main St. Fl. 2, Chehalis, WA, 98532-4802, for Respondent.

PUBLISHED OPINION

Appelwick, J.

¶1 Roach appeals his conviction for rape of a child in the second degree. He argues that the trial court improperly dismissed a potential juror for actual bias. He also argues the trial court erred in declining to allow him to withdraw his consent for his wife to testify against him. He argues he received ineffective assistance of counsel because his counsel did not request an exceptional sentence based on his youthfulness. Last, he argues that the trial court erred in assessing a DNA collection fee upon him because he has a prior felony conviction. We affirm.

FACTS

¶2 Johnny Roach raped a twelve year old girl while his wife Seirah Daniels held her down. The victim was Daniels's close family friend. The State charged the pair as codefendants with rape of a child in the second degree. The two cases were later severed to be tried separately.

¶3 During voir dire, the State questioned potential jurors on their willingness to convict a defendant for sexual assault based solely on the testimony of an underage victim. The State and potential juror number two had the following exchange:

PROSPECTIVE JUROR NO. 2: I have a question.
MR. HALSTEAD: Yeah. Number 2, go ahead.
PROSPECTIVE JUROR NO. 2: Back to that.
MR. HALSTEAD: Yeah.
PROSPECTIVE JUROR NO. 2: Let's just say the person that is charging the gentleman is 14 years old, and the only thing that you can look at is her testimony?
MR. HALSTEAD: No, I'm not -- well, the question I posed is what if -- and that's why I kind of predicated it with these sexual assaults normally only happen with two people, right?
PROSPECTIVE JUROR NO. 2: Yeah.
MR. HALSTEAD: There [are] always other individuals around, right, that eventually hear it and then it gets reported. But that's the only real evidence, though, because they are the only two in the room, right?
PROSPECTIVE JUROR NO. 2: Right.
MR. HALSTEAD: So what do you do?
PROSPECTIVE JUROR NO. 2: I couldn't convict.
MR. HALSTEAD: You could not?
PROSPECTIVE JUROR NO. 2: No, not with just one person's word ... [i]f it was a young child, a young girl.
MR. HALSTEAD: Okay. ... This is extremely important. So if you had your house burglarized and you -- and you -- let me start over. You go home. You drive up into your driveway. You pull up into your front yard. You walk up to your front door, and a man you don't know is walking out of your house with all of your jewelry in his hands. You look right at him. You see him. You know who he is. He walks right by you. You try to stop him. He walks right by you. You call the police. You are the only person that saw him commit a burglary of your house. How would you feel if we charged him with the burglary and you got on the stand and you identify the person, you told them, "I know he took all my stuff. He took all my jewelry, and I know him from prior contacts," but yet the jury said, "You are the only person who saw him. Doesn't matter that you knew him. Doesn't matter what you saw. Doesn't matter. We are not going to convict him."
PROSPECTIVE JUROR NO. 2: That's our law.
MR. HALSTEAD: What's that?
PROSPECTIVE JUROR NO. 2: That's our law.
MR. HALSTEAD: That's --
PROSPECTIVE JUROR NO. 2: That's the way the court system works.
MR. HALSTEAD: No, that's not --
PROSPECTIVE JUROR NO. 2: In that case. I would not be happy about it but I -- in all honesty.
MR. HALSTEAD: Okay.
PROSEPCTIVE JUROR 2: If I'm talking -- if I'm listening to a 14-year-old girl, the only witness, and there is no other corroborating evidence of a doctor visit, hospital visit, DNA [(deoxyribonucleic acid)], something that is more evidence, I cannot in all conscience send that gentleman to prison for that one thing.

¶4 The State sought to have the potential juror removed. Roach argued the potential juror had not indicated she could not be fair and should not be removed. The trial court excused potential juror two.

¶5 Prior to trial, the State sought to introduce hearsay statements from Daniels against Roach. It did so anticipating that Roach would invoke spousal privilege to prevent her from testifying. During discussion on the motion, Roach expressly declined to say whether he would invoke the privilege if the State called Daniels to testify. The trial court ruled to exclude Daniels's statements.

¶6 On the second day of trial, the State indicated it was working towards a plea deal with Daniels in order to secure her testimony against Roach. The State sought to have Roach elect whether he would invoke spousal privilege or consent to her testifying. Roach indicated that he consented to Daniels's testimony and would not invoke spousal privilege.

¶7 That evening, the State interviewed Daniels. During the interview, she relayed several different versions of the events she was to testify about. The inconsistencies were such that the State believed it might be unethical to call her as a witness. The State communicated to defense counsel that it was "99.9 percent sure [it] wasn't going to call [Daniels]." But, the next morning, the State had decided that it would call Daniels to testify.

¶8 In response, Roach indicated he was reasserting spousal privilege to block Daniels from testifying. The State argued that Roach could not reassert the privilege because he had waived the privilege and the State had secured a plea deal with Daniels in reliance on Roach's waiver the previous day. The trial court agreed with the State and allowed Daniels to testify.

¶9 Daniels initially testified that Roach raped the victim while she forcefully held the victim's arm down. She testified that Roach was on top of the victim when this happened. On cross-examination, she testified that the victim was also on top of Roach for a period of time during the assault. Daniels also confessed to lying during previous interviews. On cross-examination, she testified that Roach never had sex with the victim. She reaffirmed this on redirect, saying that she had made up the entire interaction.

¶10 The State also introduced testimony from the victim, who testified that Roach raped her while Daniels held her arms down. The victim's mother also testified. She testified that the victim's sister told her about the assault. She also testified that the victim's demeanor changed in the time after the assault. She said that the victim was withdrawn and would only wear sweatpants and hoodies. She testified that she called the police when she was told what had happened.

¶11 The victim's sister also testified. She testified that she found out about the rape when she asked her sister if she was still a virgin in the presence of Daniels. Her sister would not answer and instead put her head down. At this point, Daniels began "giggling" and left the room. The victim's sister followed Daniels, who disclosed to her who the victim had had sex with. She then went outside to talk with her sister, who confirmed the same.

¶12 The State also introduced testimony from Lewis County Sheriff's Deputy Emmett Woods. Deputy Woods responded to the initial report. He testified that the victim began crying when he attempted to interview her and would not answer questions. He testified that she also cried prior to a subsequent interview with a female specialist but participated fully in that interview.

¶13 Lisa Wahl, the nurse who performed a forensic medical examination on the victim, also testified. Nurse Wahl specializes in examination of minor victims of sexual assault. She testified that the victim told her during her interview that she had been raped. She testified that the victim reported bleeding and difficulty urinating, which are symptoms consistent with rape. She also testified that the victim relayed the conversation between herself, her sister, and Daniels where her sister learned of the rape. She testified that her physical examination of the victim showed trauma to her vagina that was consistent with a rape.

¶14 The jury found Roach guilty as charged. At sentencing, the State requested a sentence in the high end of the sentencing range. Roach requested a mid-range sentence. The trial court sentenced Roach at the top of the range, finding that the case "calls out, screams out, for the top of the range. It's senseless. There's no reason for it. There's no excuse for it." Relying on the State's representation that no DNA had previously been collected from Roach, it imposed a DNA fee.

¶15 Roach appeals.

DISCUSSION

¶16 Roach makes four arguments. First, he argues the trial court erred in dismissing potential juror two for cause. Second, he argues the trial court erred in declining to allow him to revoke his consent for his wife to testify against him. Third, he argues that he received ineffective assistance of counsel at sentencing because his lawyer did not request a mitigated exceptional sentence due to his youth. Last, he argues the trial court erred in assessing a DNA collection fee against him.

I. Dismissed Juror

¶17 Roach argues the trial court erred in dismissing potential juror two for cause.

¶18 Both the Washington and federal constitutions guarantee a criminal defendant the right to trial by an impartial jury. U.S. CONST. amend. VI ; WASH. CONST. art I, § 22 ; State v. Sassen Van Elsloo, 191 Wash.2d 798, 807, 425 P.3d 807 (2018). This right is safeguarded in part by statutes that require the trial judge to dismiss biased jurors. Sassen Van Elsloo, 191 Wash.2d at 807, 425 P.3d 807. The operation of these statutes depends on whether the juror is a potential, impaneled, or deliberating juror. Id. The dismissal of a potential juror during voir dire is governed...

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