State v. Thornton, No. 36379-8-II (Wash. App. 4/21/2009)
| Decision Date | 21 April 2009 |
| Docket Number | No. 36379-8-II,36379-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CLINTON ASHER THORNTON, Appellant. |
Appeal from Kitsap Superior Court. Docket No: 06-1-01690-2. Judgment or order under review. Date filed: 06/01/2007. Judge signing: Honorable Theodore F Spearman.
Counsel for Appellant(s), Eric J. Nielsen, Nielsen Broman & Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.
Christopher Gibson, Nielsen Broman & Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.
Jordan Broome McCabe, Attorney at Law, Po Box 532, Lakebay, WA, 98349-0532.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, 614 Division St, Port Orchard, WA, 98366-4614.
UNPUBLISHED OPINION
Clinton Asher Thornton appeals his conviction for unlawful possession of methamphetamine, arguing that (1) the trial court denied him his right to a public trial when it closed the courtroom without considering the Bone-Club1 factors, (2) the trial court denied him his right to a fair and impartial jury when it refused to dismiss the entire panel after two prospective jurors made comments regarding his physical appearance, (3) the trial court erred when it excluded "other suspect" evidence incriminating the driver of the car in which the methamphetamine was found, (4) the trial court erred when it excluded evidence regarding his reputation for sobriety, (5) the trial court erred when it excluded evidence regarding his physical appearance as a child, (6) one of the State's witnesses improperly commented on his guilt in violation of his right to a jury trial, (7) sufficient evidence does not support his conviction, and (8) cumulative error denied him a fair trial. Because none of Thornton's claims have merit, we affirm.
On November 18, 2006, Joseph Dill drove Thornton and Christopher King home in Dill's car. Dill was driving, King was in the front passenger seat, and Thornton was alone in the back seat. At 11:30 pm, Officer David Walker and Officer Beth Deatherage pulled Dill over for a license plate infraction and ultimately arrested him for driving with a suspended license.
Initially, Officer Deatherage told Thornton and King that they were free to leave and they got out of the vehicle. Deatherage spotted open alcohol containers in the car and determined that she needed to identify the passengers and establish that they were at least 21 years old. After verifying King's identification, Deatherage arrested King on an outstanding warrant. When Deatherage handcuffed King, Thornton began complaining that the arrest was a "scam" and that the officers did not have "probable cause" for the stop. 2 Report of Proceedings (RP) at 288, 312.
While this was going on, Officer Walker was speaking with Thornton. Walker noticed that Thornton was holding a juice bottle. Believing the bottle contained alcohol, Walker confiscated it and poured the contents onto the asphalt. Some of the juice landed on Thornton's shoe and splashed on his pants leg. In response, Thornton shoved Walker with both hands, knocking him backwards. After a brief scuffle, Walker handcuffed Thornton and put him in the patrol car.
Officer Deatherage searched Dill's car incident to the arrests. She found two glass smoking pipes and a small plastic bag containing methamphetamine under the front passenger seat. In the back seat, directly behind where Thornton had been sitting, Deatherage found a sunglasses case containing methamphetamine shoved into the crevice between the seat back and the seat bottom.
On December 25, 2006, law enforcement again arrested Dill for driving with a suspended license. This time, Thornton was in the front seat. When law enforcement searched Dill incident to his arrest, the arresting officer discovered methamphetamine in Dill's pocket and a small glass bong on the floorboards in the rear of the vehicle.
The State charged Thornton with third degree assault2 and unlawful possession of methamphetamine based on the events on November 18, 2006. A jury trial commenced on April 2, 2007.
During the morning recess in the midst of voir dire, Juror No. 36 returned to the courtroom and advised the bailiff that she wanted to discuss a "private matter" concerning her son's imprisonment for a drug-related murder outside the presence of the remaining panel members. 2 RP at 105. Specifically, she revealed that, although she believed that her son made a mistake and deserved his punishment, she was prejudiced because her experience has caused her to "lean more towards . . . see[ing defendants] help themselves and not go to prison, because that's no help at all." 2 RP at 107. Moreover, she was concerned that she may be distracted because her son's incarceration was related to his drug use. This exchange took place in the open courtroom on the record. By agreement of the parties, the trial court excused Juror No. 36 for cause. Shortly thereafter, the bailiff brought the remaining prospective jurors back into the courtroom.
Also during jury selection, Juror No. 3 stated that she was not sure that she could be fair and impartial in a case involving an allegation of methamphetamine possession because she had been the victim of a theft perpetrated by a methamphetamine user and, based strictly on appearance, Thornton "looks like he does [methamphetamine] all the time." 2 RP at 215. Juror No. 3 went on to state that she has "seen . . . what [methamphetamine] does to families." 2 RP at 216. In discussing the presumption of innocence, Thornton's trial counsel then asked the panel if, when they walked in and saw Thornton, any of them thought, "I wonder what he did." 2 RP at 216. In response, Juror No. 24 stated, 2 RP at 216.
This exchange prompted a discussion between the attorneys and the jurors about physical appearance and whether it is appropriate to make determinations of guilt based on appearance alone. Several jurors responded that they thought not because, based on their experiences, appearances could be misleading. In addition, several jurors stated that they were supposed to decide the case based on credible testimony, evidence, and facts, while another brought up the "beyond a [reasonable] doubt" standard. 2 RP at 218. At this point, the trial court called the afternoon recess.
After the recess, but before the panel reconvened, the parties agreed to dismiss Juror No. 3 and Juror No. 24 for cause. Thornton's trial counsel moved for a mistrial, asking the trial court to dismiss the entire jury panel because she was concerned that, despite her attempts to rehabilitate the venire, the remaining prospective jurors may make assumptions about Thornton based on Juror No. 3's and Juror No. 24's comments. Thornton's trial counsel stated he was particularly concerned because, at one point during voir dire, Thornton began crying and, when Juror No. 24 said that he would pray for Thornton, Thornton said, "Thank you." 2 RP at 225.
The trial court declined to dismiss the entire panel and admonished the remaining panel members, stating:
[T]here's a matter that I feel the need now to discuss with you because you heard two jurors give an opinion from their personal experience in life of what they think from their mere observation of [Thornton] about drug use. First of all, that is the expression of bias. Such opinions based on mere appearance alone would never be sufficient in a court of law for someone to be found guilty much less even be charged with such offense. As one of the jurors mentioned earlier, appearances are very deceptive and, in fact, one of the best Craftsman was one who, if you looked at him, wouldn't think for a moment he could be. The same is true for appearances. The annals of medicine are full of mimic indications of numerous different conditions that appear to be something entirely different. Nutritional issues could very well be involved in appearances. . . .
So to come to an opinion, although you have now heard this from two individuals who indicated they had an experience with people and now they have an opinion, the real issue for me right now is to learn if any of you feel that, now that you have heard this, you would not be able to put it out of your mind?
Because it is baseless under the law and the rules of evidence. And what we require, both by oath, by submission to direct and cross-examination, to test foundations of the experience, the background, the training, these are the types of things that we require before people are allowed to express opinions with respect to reality.
2 RP at 230-31. The trial court went on to question the jurors about whether any of them felt that the comments relating to Thornton's physical appearance would affect their ability to be objective and fair. Specifically, the trial court stated:
So what I need to know now from each of you and honestly — there's no right [or] wrong answer here — I sincerely need to know, [are] there any of you who feel, now that you have heard this expression of opinion, feel that that would somehow creep into your decision-making process or how you view the world or view the evidence or how you look at [Thornton] now or how you might listen to the evidence in the case and let that creep in, instead of making the decision based on your own observations from the witness stand and the like in deciding what the facts are in this case?
So I would like to have hands of someone who honestly feels that this [has] really soured you to this case[.] Now, I don't see any hands. But my memory was when some folks — there was a reaction. A gentleman actually started talking to [Thornton] directly; there might have been some heads nodding. I really need...
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