State v. Wheeler

• Docket Number: 83329-4-I
• Decision Date: 07 August 2023
• Parties: STATE OF WASHINGTON, Respondent/Cross Appellant, v. KYLE RANDALL WHEELER, Appellant/Cross Respondent.
• Court: Washington Court of Appeals

1

STATE OF WASHINGTON, Respondent/Cross Appellant, v. KYLE RANDALL WHEELER, Appellant/Cross Respondent.

No. 83329-4-I

Court of Appeals of Washington, Division 1

August 7, 2023

UNPUBLISHED OPINION

Birk J.

Kyle Wheeler appeals his conviction for second degree manslaughter. He argues (1) the State did not establish corpus delicti, (2) the State did not present sufficient evidence, (3) the trial court erred by admitting a witness's opinion testimony, (4) the trial court erred by admitting statements Wheeler made during phone calls with police, (5) the State committed prosecutorial misconduct in closing, and (6) the trial court erred by imposing witness no-contact orders. The State cross appeals the trial court's suppression of certain evidence. We agree there was error in the admission of the opinion testimony and the State committed prosecutorial misconduct, but these errors were harmless and otherwise Wheeler fails to show error. We affirm and do not reach the State's cross appeal. We remand for the trial court to address the effect of statutory amendments on Wheeler's judgment and sentence.

In light of Wheeler's corpus delicti and sufficiency arguments, we summarize the evidence at trial in the light most favorable to the State. See State v. Hummel, 165 Wn.App. 749, 759, 266 P.3d 269 (2012); State v Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).

Charles Hatem was staying with Randy Wheeler in Randy's studio apartment in Everett.^[1] Rachael Bowker and Hatem had been in a relationship and separated, but remained on good terms. On the evening of September 8, 2018, Bowker traveled to a bar in Everett to watch a football game. When Bowker arrived, she encountered Randy, his son Kyle Wheeler, and Wheeler's girlfriend.^[2]Bowker observed them become progressively more intoxicated leading up to half time. Randy suggested that Bowker visit Hatem at the apartment, which was near the bar. Wheeler offered to take his father's key card and let Bowker into the building.

On the walk to the building, Bowker observed Wheeler become angry. Wheeler said of Hatem, "I am going to tell that piece of shit to get the fuck out of my dad's house. He's going to get him fucking evicted. He needs to move his shit out. . . . That piece of shit needs to get the fuck out of my dad's house." Building security footage shows the pair at 9:42 p.m. Wheeler accompanied Bowker to the apartment. Hatem was asleep and woke when they entered. Hatem told Bowker he missed her, and came over to embrace her. At that point, Wheeler said to Hatem, "We're not here to talk about your fucking girlfriend," and, "[y]ou need to get the fuck out of my dad's apartment." Hatem said to Wheeler, "Oh, Mr. Wheeler you must be Kyle. I've heard a lot about you," to which Wheeler responded, "Shut the fuck up. Stop interrupting me. You need to get the fuck out of my dad's apartment. You're going to get him kicked out." Wheeler said to Hatem, "I'll throw your ass out this window." Bowker became frightened, and left the apartment to get Randy or Wheeler's girlfriend. When Bowker left, Wheeler was standing above Hatem, pointing in Hatem's face and yelling. Bowker did not observe any injuries on Hatem's face.

Bowker got Randy and Wheeler's girlfriend to leave the bar. She followed them out. Bowker saw the two meet Wheeler, who was coming from the direction of the apartment building. Bowker heard Wheeler say, "I told that piece of shit I was going to throw his ass out of the window. Then I had to hold him down by his neck until he calmed his ass down." Bowker watched the three walk towards the apartment, and she returned to the bar.

Between 11:00 p.m. and 2:00 a.m. that night, Jerry Ott, who lived on the floor below Randy, heard a "ruckus" that sounded like "[s]omeone falling."

Shortly before 4:52 a.m. on the morning of September 9, Michelle Gallegos discovered Hatem's body on the floor in the hallway outside Randy's apartment. Gallegos noticed a "blanket full of blood" and concluded Hatem was deceased. Gallegos called 911 shortly after 4:52 a.m Responding police found wet blood, indicating fresh injuries.

Daniel Selove, MD, conducted an autopsy. This showed "five impacts or head and neck injuries" to Hatem's head and neck: a 5/8 inch full-thickness tear on his left upper lip; a discoloration on the right forehead above the eyebrow with swelling; an area of bruising of the left scalp just above the left ear area; bruising of the undersurface of the scalp high on the right side of the head; and acute bruising to the left side of the neck with a fractured hyoid bone. Selove testified the hyoid is a "thin vulnerable bone." Selove testified a hyoid fracture can occur not only from strangulation, but "with an impact at the site, again, either by an object or a surface sufficient to cause local pressure." Selove described the possible causes of a hyoid fracture as including "blunt injuries." In Selove's opinion, the injury to Hatem's right forehead was more likely due to a kick than a punch.

The cause of death was a subdural hematoma. The impacts "resulted in this accumulation of blood within the skull or on the brain surface, which led to brain death." It would have taken minutes to hours after the impacts for the subdural hematoma to form.^[3] Selove testified that had Hatem been transported to a hospital shortly after the impacts occurred, there would have been a reasonable chance he may have survived.

Selove took blood samples from the subdural hematoma and from large blood vessels of the abdomen and pelvis. The blood alcohol concentration of the subdural hematoma was .242, and the blood alcohol concentration of the body was .235. Selove concluded from the similarity that the bleeding on the brain surface was "an ongoing condition, an acute evolving accumulation of blood on his brain surface, that was leading him to die." Selove concluded the manner of death was homicide, because another person was likely involved in the accumulation of Hatem's injuries. Selove could not exclude the possibility that a fall caused "part of the totality of injuries."^[4]

Selove concluded Hatem's body showed pulmonary edema. Selove described this as "an abnormal accumulation of fluid in the airways in the lungs." It occurs "over minutes or hours leading to death." "[A] foam, usually a white bubbly foam, maybe pink-tinge foam from the mouth may be observed in the person who is not yet dead but dying."

In the days following, Wheeler spoke to several people about the night's events. Anthony Verhey testified Wheeler told him that "he was evicting a guy that had been staying with his father, and the gentleman didn't want to leave, so he beat him and left him in the hallway. Gave him a blanket." Wheeler said, "he punched him" and later, "he knocked him out." Wheeler said "last he saw him he was breathing," and "he checked for a pulse[,] and [Hatem] had one."

Benjamin Scott testified Wheeler said he had punched a guy a couple of times, and that he had passed away.

Deanna Buffon testified Wheeler said he struck Hatem with an open-hand smack on the face, and put him in the hallway with a blanket. Buffon said when Wheeler and Randy checked on Hatem, there was foam at his mouth. They checked for a pulse and found he was still alive, so they left him there.

Dave McCracken testified Wheeler said he had gotten into a heated argument with an older man who was drunk. Wheeler told McCracken he hit the guy three or four times, and "must have knocked the guy down because he said he went to check on him, and the guy was foaming at the mouth. And he covered him up with a blanket I think." McCracken testified, "[H]e told me: I beat the F-ing crap out of him."

On November 7, 2018, detective Steve Brenneman called Wheeler and told him he would be filing charges. According to Brenneman, Wheeler said," 'I'm being charged because some guy was puking and shitting in the hallway, and I turned his head to check on him." Wheeler called Brenneman back and said, "I can't believe you are charging me. He was a piece of shit that died in his own puke."

The jury found Wheeler not guilty of first degree manslaughter, but guilty of second degree manslaughter.

I

We review the record for a showing of corpus delicti de novo. State v. Green, 182 Wn.App. 133, 143, 328 P.3d 988 (2014). To establish corpus delicti in a homicide case, the State must show, through evidence independent of a defendant's incriminating statements, (1) the fact of death, and (2) a causal connection between the death and a criminal act. State v. Aten, 130 Wn.2d 640, 655-56 927 P.2d 210 (1996). "[M]ens rea is not required to satisfy corpus delicti." State v. Cardenas-Flores, 189 Wn.2d 243, 263-64, 401 P.3d 19 (2017). "[C]orroborating evidence need 'only tend to show the "major" or "essential" harm involved in the offense charged.'" Id. at 264 n.9 (quoting 1 Kenneth S. Broun et al., McCormick on Evidence § 146, at 810 (7th ed. 2013)). On review, "this court 'assumes the truth of the State's evidence and all reasonable inferences from it in a light most favorable to the State.'" Hummel, 165 Wn.App. at 759 (quoting State v. Aten, 130 Wn.2d 640, 658, 927 P.2d 210 (1996)). "[T]he corpus delicti is satisfied where the totality of the independent evidence supports a reasonable and logical inference that there was a death and a causal connection between the death and a criminal act." Id. at 769-770.

Wheeler emphasizes State v. Brockob, 159 Wn.2d 311, 334-35 150 P.3d 59 (2006), and particularly one of three companion cases in that decision concerning defendant Cobabe. While in custody Cobabe told authorities he had taken Whitlock's compact disc/digital video disc player to compel Whitlock to find him so that he could require Whitlock to supply...