State v. Williams, 83628-5-I

CourtCourt of Appeals of Washington
Writing for the CourtMANN, J.
Docket Number83628-5-I
Decision Date07 November 2022



No. 83628-5-I

Court of Appeals of Washington, Division 1

November 7, 2022



Marcus Williams appeals his conviction for felony hit and run, arguing that the to-convict instruction omitted an essential element of the crime. He also argues that the trial court erred by (1) denying his request to recess so that a juror who had been observed sleeping could rest and (2) ordering him to pay the mandatory victim penalty assessment. We hold that the jury was properly instructed and discern no error in the trial court's declining to recess or imposing the victim penalty assessment. We also hold that none of the issues that Williams raises in his statement of additional grounds for review (SAGR) warrants reversal. Therefore, we affirm.


In August 2019, the State charged Williams by information with felony hit and run following a February 2019 collision that resulted in a bicyclist's death. Williams pleaded not guilty, and the charge was tried to a jury over five days in late August and early September 2021.


At trial, witness Tyrel Charles testified that he, Kenoshay Rouse, Kayla Martinka, and an infant, were in Williams's white Chevrolet four-door on February 25, 2019, when they were involved in a collision. Charles testified that he, Martinka, and the infant, were in the back seat, Rouse was in the front passenger seat, and Williams was driving. Charles recalled that the group was traveling on Rainier Avenue South when "the car in front of us all of a sudden slammed on their brakes, so [Williams] moved over and then by the time we got side by side . . . that's when the dude on the bike came out." Charles testified that there was "a loud bang" and the windshield broke. Charles could not remember the cross street, but recalled "it was by the Safeway."

Charles testified that after hitting the bicyclist, Williams "continued driving straight and . . . came to a stop around the corner," and after "a brief like two minutes," began driving again. He testified that Williams stopped at multiple friends' houses "trying to find somewhere to leave the car." Charles recalled that "someone [Williams] knew" picked up Charles, Rouse, Martinka, and the infant, and took them home, but he could not remember if Williams "stayed or if he left." He also recalled that Williams left his car in "a field."

Martinka, who also testified, recalled that on February 25, 2019, the group was in a white car, with Williams driving, when they were involved in a collision. When asked "how the car accident happened, involving the bicyclist," Martinka responded, "We were driving in the left lane and the car immediately in front of us came to a complete stop and to avoid an accident, [Williams] merged to the right. And as soon as he merged to the right, it was right there." When asked whether there was any damage to the car, Martinka responded that "[t]here was some glass." She testified that after the accident,


Williams "stop[ped] some ways right up above" but did not get out of the car and eventually kept going. Martinka testified that Williams left the car "somewhere outside" and then went with the group to Martinka's house, where he stayed for "a couple of days."

A paramedic who responded to the collision testified that the bicyclist was pronounced dead at the scene. And, a medical examiner testified that the collision caused the bicyclist's death.

Multiple law enforcement officers who responded to or investigated the collision also testified at Williams's trial. Officer Quinton Cooper testified that although he initially went to the scene, he left because he "received . . . additional information from . . . Renton PD that they had located a possible suspect vehicle." Officer Mitchell Schaefer similarly testified that "[d]ispatch . . . advised that someone had called in and explained they found a vehicle" matching the description of the car involved in the collision. Schaefer, who then went to the vehicle's location, testified that it was "up a long residential street in Renton, kind of tucked away on a little green space" and that it "had a lot of extensive front end damage and some blood over the front end of the vehicle and the glass." The citizen who reported the car to law enforcement later described it as a Chevrolet sedan.

The jury also heard testimony from Detective Thomas Bacon. Bacon's testimony began on the second day of trial. That day, Bacon authenticated two 911 calls from the underlying incident, and they were played for the jury. In one call, the caller stated, "I just witnessed a person on a bike-he just got hit by the car and the car is fleeing." The caller indicated that the car "was a white car . . . like an old like Chevrolet type of


four-door." When asked about the location, the caller responded, "It's . . . across the street from Rainier Beach Safeway."

After the 911 calls were played, Bacon described the scene of the collision, including by describing several photographs he took at the scene and discussing his initial impressions. Bacon also described reviewing photographs of the Chevrolet that was found in Renton. He testified that "the big thing that really caught [his] attention" was that "it looks just like the damage you'd expect to see in a vehicle that impacts a pedestrian or a bicyclist." He also testified, "You know, people drive around with damaged windshields all the time; people rarely ever drive around with a vehicle that badly damaged. It appeared to me that . . . more than likely, it had just happened." Bacon testified that after viewing a video of the collision that he had obtained from a nearby business, he "felt overwhelmingly . . . it was the same car." The video was then admitted into evidence and played for the jury. The video shows a white sedan striking a bicyclist and continuing away from the scene. After the video concluded, the case adjourned for the day.

Bacon testified again the next day, which was a Thursday and the third day of trial. During his morning testimony, Bacon described the location where the white Chevrolet was recovered. He then testified that the vehicle was impounded, and that he used the vehicle's license plate number and vehicle identification number to run a records check with the Department of Licensing. Bacon testified that the records check revealed that the vehicle had been sold in December 2018 to Williams, and during Bacon's testimony, the trial court admitted a document identifying Williams as the owner of the vehicle. Bacon then testified about his unsuccessful efforts to obtain additional


video footage, his visit to the location where the Chevrolet was abandoned to take additional photographs, and his search of the Chevrolet for additional evidence, including fingerprints. After the court admitted some photographs of the Chevrolet and some diagrams that Bacon created of the damage to the bicycle, the court took a morning recess. At that point, the prosecutor indicated that "Juror 5" "was dozing off and possibly sleeping in some portions of the testimony," and the court stated that it would "start taking stretch breaks every 30 minutes" and "keep an eye on him."

When the court reconvened, Bacon described several photographs showing the damage to the Chevrolet, then described the damage to the victim's bicycle. He described his reconstruction of the collision, including how he reached an estimate "that the vehicle was traveling somewhere between 34 and 37 mph at the time of impact." He testified that he "never found any information or any indication that anybody ever contacted us about this collision, as far as being responsible or being the owner of that vehicle." Bacon then began describing how to interpret certain cell phone records, which the State offered for admission. Defense counsel objected and indicated that "this might be a good time to recess." The trial court then announced a lunch break but asked Juror 5 to stay behind.

After the rest of the jury exited, the trial court explained to Juror 5, "The reason I held you back was because we've noticed that you've had some trouble staying awake during testimony." The court asked Juror 5, "[W]ould it be helpful to you to have the afternoon to take a nap? Or is there something that we could do to make it easier for you to be able to stay awake during the testimony?" Juror 5 responded that he had been up until 1:00 a.m. but that he did not need a nap and, "Once I have some food in


me, I'll be fine." After Juror 5 left the courtroom, defense counsel stated for the record, "Juror No. 5, I noticed he was falling asleep. He fell asleep at least three times while I observed it." The trial court indicated that it did "see him drifting off" and asked "for everyone to keep an eye on it and keep me updated if they see something that I don't."

When court reconvened after the lunch recess, defense counsel stated, "Your Honor, in discussing this matter with my Client, we have some very, very major concerns regarding Juror No. 5 in the fact that he has nodded off several times this morning." He observed that there were no alternate jurors remaining and asked the trial court to recess until Monday. The court declined to do so but brought Juror 5 in before the remaining jurors, and asked, "Hi. Wondering how you're feeling at this point?" Juror 5 responded that he had had some coffee, and when asked whether the court should recess to allow him "to take a break and get some sleep," Juror 5 responded, "No, no.... it's just not necessary."

Bacon then resumed testifying. During Bacon's afternoon testimony, the trial court admitted a recording of Bacon's interview with Williams, which was played for the jury. During the interview, Williams denied being involved in a collision on February 25, 2019, and told Bacon that his car had been stolen two or...

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