State v. Stark

• Decision Date: 07 October 2014
• Docket Number: No. 31215–1–III.,31215–1–III.
• Citation: 183 Wash.App. 893,334 P.3d 1196
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Shelly L. STARK, also known as Shellye L. Stark, Appellant.

183 Wash.App. 893

334 P.3d 1196

STATE of Washington, Respondent,

v.Shelly L. STARK, also known as Shellye L. Stark, Appellant.

No. 31215–1–III.

Court of Appeals of Washington, Division 3.

Oct. 7, 2014.

Affirmed; remanded.

Siddoway, J., filed a concurring opinion.

Fearing, J., filed a dissenting opinion. Janet G. Gemberling, Janet Gemberling PS, Spokane, WA, Jill Shumaker Reuter, Jill Reuter Attorney at Law, Spokane Valley, WA, for Appellant.

Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Lawrence Henry Haskell, Spokane County Prosecutors, Spokane, WA, for Respondent.

BROWN, J.

¶ 1 Shellye Stark appeals her first degree murder conviction, mainly contending the trial court erred by denying her a public trial when asking spectators not to come and go during closing arguments to avoid disruption. We conclude no closure occurred. She next contends the court erred in allowing impermissible opinion evidence.¹ We disagree. Finally, the State correctly concedes the court erred when imposing a community custody condition requiring Ms. Stark to undergo a mental status evaluation because under RCW 9.94B.080, it is unsupported in the record. We remand for the trial court to strike the community custody condition. See State v. O'Cain, 144 Wash.App. 772, 775, 184 P.3d 1262 (2008). Accordingly, we affirm and remand.

FACTS

¶ 2 Early on December 9, 2007, Ms. Stark shot and killed her estranged husband Robert Stark at their Spokane home.² This court overturned her earlier first degree murder conviction because sufficient evidence did not support the trial court's jury instructions. State v. Stark, 158 Wash.App. 952, 244 P.3d 433 (2010). Generally, at her second trial on the same charge, Ms. Stark related the shooting followed a history of physical and emotional abuse by Mr. Stark. She asserted self-defense, claiming he attacked her shortly after he had been served with divorce papers.

¶ 3 Ms. Stark left Mr. Stark months before these events. Once a month, when Mr. Stark was away, Ms. Stark would return to Spokane to be with her son, Chris. In December 2007, Ms. Stark returned to Spokane intending to serve Mr. Stark with divorce papers she thought were more equitable than an earlier arrangement. Ms. Stark obtained a temporary restraining order and planned to serve Mr. Stark at their Spokane home. Anticipating an angry response from Mr. Stark, Ms. Stark asked her sister, Jacquette Johnson, to bring her a gun, however, Ms. Johnson was injured in an accident when driving to Spokane with a pistol and shotgun. Ms. Johnson was taken to a Spokane hospital. An officer released the pistol and shotgun to Ms. Johnson's son, Dale.

¶ 4 On December 8, Dale gave the unloaded pistol to Ms. Stark and agreed to serve Mr. Stark with the restraining order that night. Dale, Chris, and Ms. Stark went to the Starks' home to wait for Mr. Stark. While Chris slept on the couch, Ms. Stark talked with Dale. As they talked, the gun, by then loaded, sat on the kitchen table. According to Dale, the plan was for him to serve Mr. Stark with the restraining order outside and then take Chris back to the hospital while Ms. Stark would remain at the residence to ensure Mr. Stark did not return. Ms. Stark anticipated Mr. Stark would return home around 3:00 a.m., but he returned home at 1:00 a.m., surprising Dale, Chris, and Ms. Stark.

¶ 5 Mr. Stark asked, “ ‘Shellye, what are you doing here?’ ” Report of Proceedings (RP) at 321. Dale walked passed Mr. Stark towards the door and asked him to step outside where he planned to serve the restraining order. Mr. Stark refused. Ms. Stark told Dale to just serve him while he was inside the house. Dale did and told Mr. Stark to leave the house and give him his car keys. Surprised, Mr. Stark asked Chris if he knew anything about this. Chris froze. From the kitchen, Ms. Stark told Chris and Dale to get out of the house. Seconds later, as Chris and Dale began down the steps they heard gunshots.

¶ 6 According to Ms. Stark, after Chris and Dale left, Mr. Stark angrily charged into the kitchen threatening to kill her. Mr. Stark reached and possibly touched a knife left on the counter when Ms. Stark pulled the gun she had hid behind her back, aimed, and fired three times. Ms. Stark tried to step over Mr. Stark, but he kicked her as she did. Then, Ms. Stark, in fear, fired the gun until it was empty. Ms. Stark called 911.

¶ 7 At least five shots hit Mr. Stark, four in the back. Detective Kip Hollenbeck interviewed Ms. Stark at the police department, reading her rights at 3:09 a.m. that morning. Ms. Stark ended the interview at 3:21 a.m., but according to the detective, before that, she related she shot Mr. Stark when he looked at the knife. And, Ms. Stark never told the detective Mr. Stark touched or grabbed the knife she had left on the counter, a position she later took at trial. Focusing on this discrepancy, defense counsel asked the detective during his rebuttal testimony whether it was possible Ms. Stark did not mention Mr. Stark touching the knife because the interview lasted but 12 minutes. Ms. Stark now challenges Detective Hollenbeck's testimony and the following follow up exchange as improper opinion testimony on her guilt or veracity:

Q: So there were probably a lot of things that you were not told that morning by Ms. Stark?

A: That's accurate, yes.

Q: So, not having mentioned the knife is just one of them, possibly?

A: Well, she told me that he looked at the knife and she thought he was going to go for the knife, so she took out her gun and shot him.

Q: Fair enough. Isn't it common in many situations you interview an individual multiple times before you actually take a complete statement?

A: It depends on the scenario. But, yes, we get as many interviews as we can to collect as much information as we can.

Q: And the process, when you finally give somebody their rights, that last statement may be much more detailed?

A: It depends on the individual and what she wants to tell us.

Q: And the officer?

A: Well, the officer is trying to glean information. It's not up to us what we are being told. We're hoping that it's the truth, but—

Q: Isn't part of the purpose that the repeated interviews is to get the information so that when you get the final statement, it has everything that you believe is necessary?

A: I'm not sure I understand your question. What I believe you're asking me is if what we typically do, if a participant is willing, we'll talk to them as much as we can, because any information we get is helpful. In this case, we weren't afforded that opportunity.

Q: And at the point where the conversation was terminated—let me make sure I don't ask this confusing, so give me a minute to form it. I'm assuming there had not been a lot of rapport established to where conversation could be more free-flowing. Obviously, it stopped rather abruptly?

A: Shellye Stark told me what she wanted me to hear and then the conversation was ended.

[Defense counsel]: Objection, Your Honor. I would ask that be stricken.

That's an opinion.

The Court: I'm not going to strike it. I mean, you can ask him to clarify it.

I'm not striking it. Your objection is preserved.

[Defense counsel resuming questioning]: You knew what was in Ms. Stark's mind?

A: No, I didn't know what was in her mind.

Q: So what you know is what she told you?

A: Yes.

RP 785–87.

¶ 8 Regarding Ms. Stark's closed courtroom and public trial concerns, the trial court stated before closing arguments:

I ask all the spectators, I don't really want people coming or going during closings, so if you don't think you can last the morning, you might want to rethink being in here, unless you really need to. It's just very disruptive.

RP at 891.

¶ 9 The jury found Ms. Stark guilty of first degree murder and specially found she had been armed with a firearm leading to a minimum of 300 months' confinement. She was ordered to undergo an evaluation for mental health treatment. Ms. Stark appealed.

ANALYSIS

A. Public Trial

¶ 10 The issue is whether the trial court erred by violating Ms. Stark's public trial rights when cautioning the spectators not to be disruptive by coming or going during closing arguments. Ms. Stark contends the trial court's statement to spectators before closing arguments amounted to a closure. We review alleged public trial violations de novo. State v. Wise, 176 Wash.2d 1, 9, 288 P.3d 1113 (2012) (citing State v. Easterling, 157 Wash.2d 167, 173–74, 137 P.3d 825 (2006)).

¶ 11 Defendants have a constitutional right to a public trial. Const. art. I, § 22; U.S. Const. amend. VI. While our Supreme Court has not considered whether the public trial rights under the state and federal constitutions are co-equal, “The Washington Constitution provides at minimum the same protection of a defendant's fair trial rights as the Sixth Amendment.” State v. Bone–Club, 128 Wash.2d 254, 260, 906 P.2d 325 (1995).

¶ 12 “A public trial helps assure that the trial is fair; it allows the public to see justice done, and it serves to hold the justice system accountable.” Wise, 176 Wash.2d at 17, 288 P.3d 1113 (citing Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). “ ‘Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.’ ” Waller, 467 U.S. at 46 n. 4, 104 S.Ct. 2210 (quoting Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring)).

¶ 13 “[W]hile openness is a hallmark of our judicial process,” a defendant's right to a public trial sometimes must give way to other rights and considerations. Wise, 176 Wash.2d at 9, 10, 288 P.3d 1113 (citing Waller, 467 U.S. at 45, 48, 104 S.Ct. 2210 (noting “ ‘the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information” ’ and...