State v. Symmonds

Decision Date01 December 2020
Docket NumberNo. 37064-0-III,37064-0-III
PartiesSTATE OF WASHINGTON, Respondent, v. WAYNE BERT SYMMONDS, Appellant.
CourtWashington Court of Appeals
UNPUBLISHED OPINION

FEARING, J. — A jury found Wayne Symmonds guilty of assaults against law enforcement officers, criminal trespass, and resisting arrest. On appeal, Symmonds argues the State breached CrR 3.5 by failing to schedule a pretrial hearing when it later presented testimony from law enforcement officers as to statements made by Symmonds Symmonds also contends that the State violated orders in limine when officers used the words "assault" and "trespass" during testimony and when the State's attorney showed a diagram to a witness before the witness' testimony. We agree that the State should have scheduled a CrR 3.5 hearing, but find no prejudice. We disagree that the State violated the orders in limine. We affirm Symmonds' convictions.

FACTS

Procedural events hold more importance than the underlying facts in this appeal. We recap some of the facts, however.

Wayne Symmonds annoyed customers outside a Conoco fuel station in Ephrata. Ida Cruz, the manager of the station, directed her employee, Thomas Longley, to ask Symmonds to leave. Symmonds refused. Longley called the police.

Ephrata Police Department Sergeant Ryan Harvey and Officer Joseph Downey arrived at the Conoco fuel station. Sergeant Harvey requested that Wayne Symmonds leave. Symmonds responded, "Make me." Report of Proceedings (RP) at 86. Twice more Harvey bade Symmonds to leave the fuel station. RP 87. Symmonds insisted that he could enter the store and purchase goods.

After Sergeant Ryan Harvey's third request, Wayne Symmonds attempted to pass the officer and enter the front door of the fuel station store. Sergeant Harvey grabbed Symmonds by his right arm and attempted to steer him from the entrance. Symmonds pushed Harvey.

Officer Joseph Downey grabbed Wayne Symmonds' left arm in an attempt to prevent Symmonds and Sergeant Ryan Harvey from crashing through a large window at the Conoco station. The officers ordered Symmonds to cease resisting and to place his hands behind his back. Symmonds freed his arm from Officer Downey's grasp andcocked his fist. Downey reflexively raised his forearms to block Symmonds' punch. Symmonds landed a punch on Officer Downey's forearm and upper chest area.

Sergeant Ryan Harvey shoved Wayne Symmonds, who fell off a curb and landed on his back. Sergeant Harvey grabbed Symmonds' left arm, and he placed his right knee on Symmonds' chest. Harvey requested that Symmonds roll onto his stomach and place his hands behind his back. Symmonds refused. Sergeant Harvey straddled Symmonds. Officer Joseph Downey joined Sergeant Harvey and Symmonds on the ground. Downey placed his right forearm against Symmonds' cheek in order to hold Symmonds' face away from him.

Wayne Symmonds grabbed and squeezed Sergeant Ryan Harvey's testicles. Wayne Symmonds asked: "'How's that feel?'" RP at 96. Symmonds remarked about police being terrorists. Sergeant Harvey broke from Symmonds' grasp, stood, and warned Symmonds that he would be tased. When Symmonds continued to resist, Harvey deployed his taser at Symmonds' thigh. The tasing did not end Wayne Symmonds' defiance. Sergeant Ryan Harvey again deployed his taser, and the electroshock struck Wayne Symmonds' shoulder. Symmonds grew compliant and laid on his stomach. The officers handcuffed Symmonds.

PROCEDURE

The State of Washington charged Wayne Symmonds with assault in the third degree for striking Sergeant Ryan Harvey, assault in the third degree for attacking OfficerJoseph Downey, criminal trespass in the second degree, and resisting arrest. In the omnibus hearing order, the State advised the trial court that "no custodial statements [of Wayne Symmonds] will be offered in state's case-in-chief or in rebuttal." Clerk's Papers (CP) at 18. The State scheduled no CrR 3.5 hearing before trial for purposes of court approval of introducing evidence of comments uttered by Symmonds.

Before trial, Wayne Symmonds moved for three orders in limine. The written motion sought to:

1. Prohibit all witnesses from attending or viewing the trial until after their testimony is complete and they have been excused. ER 615.
2. Prohibit all witnesses from discussing the case or their completed testimony with other witnesses until all witnesses have completed their testimony and have been excused. ER 615.
3. Prohibit and exclude any evidence or testimony that a witness believed a crime had occurred or that the defendant committed a crime. State v. Dolan, 118 Wn. App. 323, 73 P.3d 1011 (2003). ("[A] witness may not give, directly or by inference, an opinion of a defendant's guilt.").

CP at 50-51 (alterations in original). The State registered no objection to the first two motions in limine and the trial court granted the two motions.

The following colloquy occurred when the trial court addressed Wayne Symmonds' third motion in limine.

MR. OWENS [the State's attorney]: We do not believe we're going to have anybody testify that a crime has been committed, but we are going to ask for testimony from witnesses, why they wanted the defendant trespassed from the property.
THE COURT: Okay. Mr. Bierley?
MR. BIERLEY [defense counsel]: I don't object, your Honor, to them eliciting the testimony about why they wanted Mr. Symmonds toleave. But saying that he was trespassing or that he was trespassed or really that he was trespassing is a conclusion that the jury would have to make. That's one of the counts here is trespassing in the second degree. The witnesses can't simply state their opinion as to his guilt to that charge. They can say something like, we'd asked him to leave, he didn't leave, so we called the cops, had them come over and advise him that he needed to leave. But if the witness is going to testify that he was trespassing, that's making a conclusion that should be left to the jury, based upon the facts elicited, not their opinion.
MR. OWENS: We're not going to ask what crime they think the defendant was committing to have it—we're going to ask, why did you want the defendant removed from the property?
THE COURT: Okay. So there's a nuance there, I see the nuance. I think that question and that type of testimony is fine. The actual, hey, he was trespassing, I think, is where Mr. Bierley is going at, with regard to prohibiting somebody from answering or giving testimony to the effect, he was trespassing, versus, we didn't want him here on the property, we didn't give him permission to be here anymore, something to that effect.
MR. OWENS: Right.
MR. BIERLEY: Correct.
THE COURT: I see the distinction. It's going to be granted. Obviously with that caveat that you're going to be able to ask that question of why you wanted—or not you, but why the witness wanted Mr. Symmonds potentially removed from the premises.

RP at 5-6 (emphasis added).

During trial, the State asked witness Thomas Longley whether Wayne Symmonds said anything to him, to which question defense counsel objected. Counsel contended that CrR 3.5 required a pretrial hearing to admit any of Symmonds' statements. Symmonds' counsel asked that any statement to Longley be excluded because the State never gave notice of an intent to introduce the statement as evidence. The State responded that CrR 3.5 applied to statements uttered to law enforcement, not to laywitnesses. The trial court overruled the objection. Longley then declared that Symmonds made a vulgar statement about refusing to leave when asked to leave the station.

During Officer Joseph Downey's trial testimony, he said "trespassing" four times.

Because of previous contacts, the name given to us by dispatch was somebody we believed we had contact with earlier that they had requested to be trespassed the day before.

RP at 84 (emphasis added). Defense counsel objected on the ground that the State had not sought to admit separate incidents under ER 404(b) and 609. Counsel did not assert that Downey's answer violated the third order in limine. The trial court sustained the objection.

Later the prosecuting attorney and Officer Joseph Downey exchanged the following questions and answers:

Q. And when you contacted him [Wayne Symmonds], did you inform him that he was not permitted to be at the gas station?
A. Sergeant Harvey did something, yes.
Q. And did he say anything to you?
A. Yes.
Q. What did he say?
A. Sergeant Harvey said that he was trespassed from the gas station, he needed to leave, and Mr. Symmonds said, "Make me."
MR. BIERLEY: Your Honor, I still object to that sort of question under the reason we had a side bar about earlier.
THE COURT: All right. Thank you.
The objection is overruled. Noted.
But go ahead, Mr. Nolta [prosecutor].

RP at 86 (emphasis added). The direct examination of Officer Joseph Downeycontinued:

Q. Was he asked again to leave?
A. He was. Sergeant Harvey again asked him, informed him he needed to leave, he was trespassing, and Mr. Symmonds informed us that he could go in there and buy his stuff—
MR. BIERLEY: Objection, comment on guilt, move to strike the response.
THE COURT: I'm going to have the jury disregard the last portion of the answer, but I'll ask Mr. Nolta, can you ask the question more direct?
BY MR. NOLTA:
Q. Did the defendant leave?
A. No.
Q. Was he attempting to do something besides leave?
A. At that time? After we told him the second time?
Q. Yes.
A. He still sat back down. No, he did nothing else.
Q. Did you ask him a third time?
A. He was asked a third time, he needed to leave, he was trespassing.
MR. BIERLEY: Objection, again, comment on guilt, move to strike the response.
THE COURT: I'm going to overrule that part of the objection.
Go ahead.

RP at 86-87 (emphasis added).

During trial, Sergeant Ryan Harvey testified:

Q. Okay. And then did he quit—how would you describe Mr. Symmonds' actions when you were trying to put the—get him on his stomach to get the handcuffs on him?
A. I would describe it as actively fighting.
Q. All right.
A. Not so much r
...

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