State v. West
| Docket Number | 56817-9-II |
| Decision Date | 22 August 2023 |
| Parties | STATE OF WASHINGTON, Respondent, v. EDDIE HERSHELL WEST JR., Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
On October 23, 2020, police responded to a shooting outside a Tacoma bar. Subsequent to the shooting, Eddie Hershell West Jr. exited the bar and officers instructed West to leave the active crime scene. After walking away from the scene, West realized he was going the wrong direction and began walking back towards the scene. Officers again instructed West to walk away. After a verbal exchange, an officer placed West in an escort hold in an attempt to remove West from the scene. West broke free of the hold and punched several officers. Although the bar had surveillance cameras pointed in the direction of the incident, officers did not collect or preserve surveillance video evidence of the incident involving West. West was subsequently charged with three counts of third degree assault.
We hold that (1) the trial court did not err in denying West's motion to dismiss for governmental misconduct, (2) West did not receive ineffective assistance of counsel where counsel did not request a missing evidence jury instruction, and (3) the prosecutor's statement referring to defense counsel as an "illusionist"[1] does not rise to the level of prosecutorial misconduct requiring reversal. Accordingly, we affirm West's conviction.
On October 23, 2020, police responded to a shooting at a Tacoma bar. When police officers arrived at the bar, a large crowd of patrons were leaving the chaotic scene. Once on scene officers found a gunshot victim outside the front door of the bar.
Eddie Hershell West Jr., a 46-year-old African American man, was at the bar that evening to play pool and have a couple of drinks after work.[3] After hearing the gunshot, West remained inside the bar while other patrons scattered. West exited the bar after 10 or 15 minutes. Multiple officers instructed West to walk away and stay out of the crime scene. West walked away, but when he realized he was walking in the wrong direction, he walked back towards the scene. Officer Trent Dow again instructed West to leave the scene. West attempted to explain that he was not from the area and was trying to figure out how to leave.
Officer Brynn Cenicola[4] observed West's interaction with Dow. Cenicola explained that initially, she thought West was just mumbling incoherently but that as West got closer to the officers she could more clearly hear him making threats. Cenicola attempted to deescalate the situation. Cenicola instructed West to step back while officers helped the gunshot victim. Initially, West nodded and complied by taking a few steps back; however, after a moment's pause, West re-approached the officers.
After observing West's interaction with Dow, Officer Logan Breskin joined Cenicola in approaching West. Breskin and other officers repeatedly asked West to leave the scene but West reacted in a confrontational manner, vaguely stating he was going to "beat" the officers up. 2 Verbatim Report of Proceedings (VRP) at 297. Breskin's goal was to process the scene of the shooting and to remove West from the crime scene. Breskin ultimately grabbed West and used an "escort technique" to remove West from the scene. Id. at 300. While Breskin attempted to escort West from the scene, West pulled his arm free of Breskin, leaned back, turned and punched Cenicola in the face. West then tried to hit Breskin. Breskin, aided by Officer Steven Miller, pushed West to the ground.
Once on the ground, West struck Breskin and Miller. West struck Breskin with a closed fist, in the jaw and ear. West also repeatedly punched Miller in the head and jaw. Breskin explained that he responded with force, striking West "multiple times with [a] closed fist." Id. at 308. In an attempt to stop the assault, Miller punched West in the face several times. Cenicola also struck West in the face and in the side.
During the interaction, West described feelings of "fighting for [his] life." 3 VRP at 519. West could recall being pushed and falling straight back towards the ground. West remembered reaching out, and trying to brace himself by grabbing for whatever he could reach. Although West "blanked out" during the interaction with officers and could not recall punching the officers, West acknowledged that he "probably was kicking." Id. at 518, 521. West stopped fighting officers after Miller "landed" a punch. 2 VRP at 392. Officers were then able to place West in handcuffs.
During the altercation in the parking lot between West and the officers, Officer Ryan Warner was inside viewing surveillance footage related to the shooting, which was the crime under investigation at that time. Warner was viewing the footage of the shooting to determine "who fired the gun, who's got the gun, and where [the suspect] was." 1 VRP at 15. While reviewing the live footage, Warner noticed that an altercation was occurring in the parking lot and also heard information about the altercation on his radio. Warner left the bar to assist the other officers involved in the altercation. Once the altercation was over, Warner returned to the bar to continue reviewing footage of the shooting. Because Warner was assigned to the shooting investigation, he only reviewed the footage of the shooting and not the altercation with West. The record contains no evidence that Warner believed, at the time he was viewing the footage, that West was going to be charged with a criminal offense.
The bar was unable to provide Tacoma police the video footage that night.[5] Detective James Buchanan was the detective assigned to investigate the shooting that occurred at the bar. When Buchanan reviewed the report prepared by Warner related to the surveillance footage, he realized the footage of the shooting had not been collected and he returned to the bar to collect the video. Buchanan retrieved only the footage related to the shooting and did not collect any footage related to the altercation between West and the officers.
West was charged with three counts of third degree assault against Cenicola, Breskin, and Miller.
Prior to trial, West moved to dismiss the charges against him. In his motion to dismiss, West argued that the State failed to "preserve, and/or produce, potentially exculpatory video surveillance evidence of which was in the state's control." Clerk's Papers (CP) at 21.
In its response to West's motion, the State argued that there was "no reason to believe that video surveillance of [the] incident would have been exculpatory" and that "based upon the multiple law enforcement witnesses and incident reports, any video surveillance [was] likely to have been inculpatory." Id. at 49. The State asserted that "[a]ny potential failure to collect the surveillance video showing the [incident] . . . was not done in bad faith." Id. at 54.
In explaining why he did not collect the video of the altercation, Warner testified that he was assigned to investigate the shooting, which was a separate investigation than what occurred with West in the parking lot. Warner further explained that the officers responsible for investigating the altercation with West were capable of obtaining the video. The footage of the incident was never produced to the trial court before it was apparently erased. The record does not show when the bar deleted videos of the incident or what the bar's retention policy required.
Prior to ruling on West's motion, the trial court explored West's attempts to secure the surveillance video. Defense counsel explained that attempts to secure the footage began within a month of West's case being charged.[6] Defense counsel further explained that the defense investigator tried to obtain the footage directly from the bar but the bar would not cooperate or return the investigator's call. During this same time period, defense counsel said she was having conversations with the prosecutor asking to be provided with the video. Defense counsel considered bringing a motion to compel, but instead filed a public records request for the video in April 2021. When defense counsel received the video in May 2021, she instantly discovered that it depicted only the shooting and not the incident involving West. Although the trial court asked whether the video footage had been deleted, defense counsel stated that she did not know. The trial court did not ask the State about the current status of the footage.[7]
The trial court concluded that the surveillance video was not material exculpatory evidence; however, it was potentially useful evidence. The trial court further concluded that although the Tacoma Police Department was negligent in failing to collect the surveillance video, West did not meet his burden in establishing that the police acted in bad faith. In the absence of a showing of bad faith, the trial court denied West's motion.
During closing argument, the prosecutor made the following argument to which West timely objected:
[Defense counsel's] job is to get up there and offer a defense of her client, and she does that by being an illusionist. Her job is to get you to look at other things to distract you from what is actually going on here.
4 VRP at 667. The trial court sustained defense counsel's objection.
After the jury retired for deliberations, the trial court further explained its reasoning in sustaining the objection, stating that caselaw makes I...
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