State v. Saxton, No. 37108-1-II (Wash. App. 7/21/2009), 37108-1-II.

• Decision Date: 21 July 2009
• Docket Number: No. 37108-1-II.,37108-1-II.
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. FLOYD LEA SAXTON JR., Appellant.

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Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. FLOYD LEA SAXTON JR., Appellant.

No. 37108-1-II.

Court of Appeals of Washington, Division Two.

Filed: July 21, 2009.

Appeal from Pierce County Superior Court. Docket No. 06-1-03412-2. Judgment or order under review. Date filed: 11/09/2007. Judge signing: Honorable Frederick Fleming.

Counsel for Appellant(s), Christopher Gibson, Nielsen Broman & Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.

Jordan Broome Mccabe, Attorney at Law, Po Box 40642, Bellevue, WA, 98015-4642.

Counsel for Respondent(s), Karen Anne Watson, Pierce County Prosecutor's Office, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2102.

UNPUBLISHED OPINION

QUINN-BRINTNALL, J.

A jury found Floyd L. Saxton Jr. guilty of residential burglary and first degree malicious mischief. Saxton appeals his conviction and sentence, arguing that the State's failure to provide pretrial discovery of photographs taken at the scene violated due process. Saxton also argues that sufficient evidence does not support his first degree malicious mischief conviction because the trial court erred in admitting lay opinion evidence regarding the dollar amount of property damage at issue. Because the State's failure to provide pretrial discovery of photographs of the crime scene did not amount to a Brady¹ violation and sufficient evidence supports his first degree malicious mischief conviction, we affirm.

FACTS

Background Facts

Following a previous marriage and divorce, Heather and Floyd Saxton remarried on June 3, 2004. The couple separated in May of 2006. After they separated, Heather² continued living at 1101 East 54th Street in Tacoma, Washington, while Floyd moved out. Floyd took all of his personal property except some clothing and boxes of papers. After Floyd moved out, Heather changed the locks and did not give Floyd a key, nor did she give him permission to enter the home. During their separation, the couple's two minor children resided with each parent on alternating weeks.

On the morning of June 29, 2006, Floyd was preparing to assist his mother, Jeanette James, with her move from Washington to Kansas. Floyd testified at trial that on June 29, he drove his red Trans Am with a black convertible top to his mother's apartment at 3101 East D Street in Tacoma at 10:30 or 11:00 am, but he later changed his testimony, stating he arrived at his mother's house at 1:00 pm. That same morning, Heather left her house clean and in order, locking all the doors. Heather and a co-worker drove to James's home to serve Floyd with divorce papers and a restraining order. James's residence was located approximately three miles from Heather's house and took about eight to nine minutes to reach by car. Between 2:00 and 2:30 pm, Heather's co-worker served Floyd with the divorce papers while Heather waited in the car. After serving Floyd with the divorce papers, Heather picked up her children from a friend's home and checked into a hotel to avoid any potential confrontation with Floyd.

Floyd was not aware that Heather was seeking a divorce and had expected that she and the children would be accompanying him on the trip to Kansas. Despite having talked with Floyd twice earlier that morning, Heather did not mention that she was seeking a divorce and that she and the children would not be traveling with him to Kansas. Floyd was "very surprised" to be served with the divorce papers and a restraining order. 5 Report of Proceedings (RP) at 343.

On June 29, 2006, at approximately 2:30 pm, Douglas Byrn saw what he later described as a red Camaro with a black convertible top parked in front of Heather's house. Byrn saw a black male get out of the car and walk to Heather's house. Byrn noticed that the man was carrying a "yellow-handled tool" and was "moving with a purpose." 3 RP at 33. Byrn did not know who was living at the 1101 East 54th Street house and had never met the Saxtons.

At 3:18 pm, a security company called the Tacoma Police Department to inform them that the alarm at Heather's home went off. Officers Reginald Gutierrez and Young Song arrived at the home shortly after 4:14 pm. After receiving no answer at the front door, Gutierrez and Song entered the house through a broken sliding window and did a walk through. The officers did not find anybody inside the home.

Officer Gutierrez noted that the house was "completely trashed." 3 RP at 47. Every room of the house was damaged except for the children's bedrooms. There were large holes in the walls that appeared to be produced by a crowbar or tire iron. Furniture was destroyed and "thrown all over the house." 3 RP at 47. There were broken windows and mirrors. Water was left running in the kitchen, bathrooms, and the laundry room. The basement floor was wet from the overflowing water and the basement door was off its hinges. The master bedroom door was also off its hinges, jewelry racks were broken, and jewelry and clothes were scattered across the bedroom floor. All of the bathrooms were damaged; there were broken vanities, broken mirrors and a shattered glass shower door. There was also significant damage to the kitchen. The refrigerator was knocked over onto the range and the refrigerator door was removed. Kitchen drawers were removed and broken. The front panel of the oven was ripped off with the insulation exposed and the microwave was "smashed." 4 RP at 172.

The officers noticed a burning smell, saw that one of the oven's range tops was on, and called the Tacoma Fire Department. Officers also saw a burnt bible either on the burner or next to it. Nothing from the house was missing or stolen and none of the children's or Floyd's personal property was damaged.

On June 29, 2006, forensic specialist Toni Martin came to Heather's house to photograph the damage and process the scene for latent fingerprints. Martin was unable to recover any latent fingerprints.

On June 30, 2006, Heather returned to her house, discovered the break-in, and called the police. Heather did not notice any blood spatter in the home on this date. Because of the damage to the house, Heather and her children continued staying at a hotel. Heather and her co-worker, Verna Thomas, returned to the house the following Monday, July 3, 2006, and Thomas noticed blood on the wall next to one of the holes. Heather and Thomas returned to work and Heather called the detective on the case to inform her about the blood.

On July 20, 2006, Tacoma Police Detective Christine Coulter went to Heather's house to investigate. Coulter saw that "blood spatter was in the very areas where a crowbar or a hammer, some tool with a claw, had been used to rip at the walls and tear them down." 4 RP at 242. She also saw blood spatter on a ceiling light and believed this occurred when someone raised a crowbar to destroy the walls. That same day, Tacoma Police Forensic Services Supervisor, Mary Lally, went to Heather's home to take photographs and to collect samples from the suspected blood spatter. Lally collected four suspected blood swabs and a control swab. She photographed suspected blood on top of the washing machine, the east dining room wall, the east living room wall, and the south living room wall. Lally noted that the blood spatters were located within a foot or less of the damaged areas.

James Currie, a forensic scientist from the Washington State Patrol Crime Lab, analyzed the swabs and a blood sample taken from Floyd. Currie found that all four swabs matched Floyd's blood sample. Currie testified at trial that the chance of another person's deoxyribonucleic acid (DNA) coming up with the same profile is one in 4.7 quintillion.

Procedural Facts

On July 24, 2006, Pierce County charged Floyd with residential burglary, contrary to RCW 9A.52.025, and first degree malicious mischief, contrary to RCW 9A.48.070(1)(a). A jury trial began on October 25, 2007.

At trial, Officer Gutierrez testified that, in his opinion, the damage to the house exceeded $50,000 and it would take two people more than an hour to cause that much damage. Later, over defense objection, Heather testified that, based on insurance company estimates, she believed damage to the structure was $11,000, and the damage to her personal property was $4,000.

Defense counsel later renewed his objection:

[Defense counsel]: Your Honor, I was going to ask the Court to reconsider the Court's denial of my objection to hearsay in the context of the victim witness repeating the estimate of the insurance company.

THE COURT: Well, let me tell you about that. All you have to do with that, a homeowner or owner of the property is always able to testify with reference to the value of the property or the value of their damage from their own wisdom, their own experience. And you objected that she said that she was told by the insurance people they estimated the damage to be $11,000, I think it was.

[Defense counsel]: Yes, Your Honor.

THE COURT: And in my mind, she listened to that; she knows her property and what was destroyed, and she says she thought it was $11,000. That was one factor that she used in coming up with that estimate, is what it amounted to, so I didn't think that it was prejudicial to let her testify to what she thought the value was, based upon the information that she was privy to, and including the insurance people, which was an estimate. Nobody has any document of any description, do they? And so that's why I did that.

[Defense counsel]: Okay. I believe she could testify, as Your Honor has considered, about her lay person's opinion.

4 RP at 218-19. On the third day of trial, November 1, 2007, the following colloquy took place:

[State]: . . . I intended and had Toni Martin, the forensics specialist, waiting to testify all morning regarding the photographs she took. During the recess I took out the photographs we've had marked 1 through 9 just to go over those with her and her comment to me was, "These are not my photographs.". these...