State v. Wilson

• Decision Date: 06 November 2007
• Docket Number: No. 25458-5-III.,25458-5-III.
• Citation: 171 P.3d 501,141 Wn. App. 597
• Parties: STATE of Washington, Respondent, v. James WILSON, Jr., Appellant.
• Court: Washington Court of Appeals

171 P.3d 501

141 Wn. App. 597

STATE of Washington, Respondent, v. James WILSON, Jr., Appellant.

No. 25458-5-III.

Court of Appeals of Washington, Division 3.

November 6, 2007.

Janet G. Gemberling, Julia Anne Dooris, Gemberling & Dooris PS, Spokane, WA, for Appellant.

Kevin Michael Korsmo, Attorney at Law, Andrew J. Metts III, Spokane County Pros. Offc, Spokane, WA, for Respondent.

Stephens, J.

¶ 1 James Wilson¹ appeals his conviction for one count of second degree theft. He contends he was denied his right to due process because he was not present for an in-chambers questioning of a juror; the court erred by failing to dismiss the juror for cause; and the evidence was insufficient to support his conviction. In his statement of additional grounds for review, Mr. Wilson also contends he was denied effective assistance of counsel. We affirm.

FACTS

¶ 2 On May 2, 2005, Wal-Mart loss prevention employee, Ron VanTassel, was looking for shoplifters when he saw Mr. Wilson pushing a shopping cart containing about 15 digital video disks (DVDs). Mr. VanTassel followed Mr. Wilson into the pet department and watched him take the DVDs out of the shopping cart. Mr. Wilson placed the DVDs on the back of a shelf and left the store. He then got into a car with two females.

¶ 3 Mr. VanTassel and Wal-Mart security guard, Chad Craig, got into Mr. VanTassel's car and followed Mr. Wilson to a Fred Meyer store. They watched Mr. Wilson go into the store. After 10 minutes, Mr. Wilson came out of the store and went to his car. He grabbed a coat from the car and put it on. He then went back into the store. Within five minutes, Mr. Wilson ran out of the store followed by a store employee. Mr. Wilson got into the car and sped out of the parking lot to a Staples store.

¶ 4 At Staples, Mr. VanTassel watched Mr. Wilson enter the store and come back out within a few minutes. Mr. Wilson then got into his car and left. Mr. VanTassel watched Mr. Wilson pull items from his front seat area and hand them to a female passenger in the back seat. He then proceeded to a Michaels store, where Mr. VanTassel observed similar events.

¶ 5 Mr. Wilson next stopped at a Rite-Aid store. He went into the Rite-Aid store for several minutes and came back out to his car. Mr. Wilson again leaned forward and handed items to the female passenger in the back seat.

¶ 6 At one point, Mr. VanTassel observed Mr. Wilson get out of his car and pull long strips of tin foil from his pants legs. He put the tin foil on the floorboard area of his car and sat back down. Mr. VanTassel then called the police, who stopped Mr. Wilson's car and placed Mr. Wilson under arrest.

¶ 7 Inside the vehicle, police found numerous DVDs, an MP3² player, a compact disk (CD) player and two telephones. Mr. Wilson was charged with one count of second degree theft. The matter proceeded to jury trial.

¶ 8 At the conclusion of the first day of trial, Juror No. 2 informed the trial judge's judicial assistant that she had recognized one of the State's witnesses, Rite-Aid employee, Joseph Spencer. The judicial assistant informed the trial judge and the next morning the judge held an in-chambers conference with the prosecutor and defense counsel to question the juror. Mr. Wilson was not present at the conference, and the record does not indicate whether he was aware the conference was taking place.

¶ 9 The juror told the trial judge that she was a former Rite-Aid employee. She said she had worked at Rite-Aid for 14 years, but had to quit because of scheduling and family issues. She said that she did not know Mr. Spencer personally and had never talked to him, but knew that he worked in loss prevention. The juror told the trial judge that her employment with Rite-Aid did not impact her ability to decide the case fairly. She also said that it did not matter to her at all that a Rite-Aid store was one of alleged victims in the case.

¶ 10 Defense counsel then questioned the juror. The following exchange occurred:

[Defense Counsel]: Is there any information that you have that would be shared in the jury room that isn't on the stand that would be unique to you because you worked there?

[Juror No. 2]: No, because I would only go over the evidence that is —

[Defense Counsel]: And did you work at the Rite-Aid at 5520 North Division?

[Juror No. 2]: I floated in there as a pharmacy technician in January a couple times and I think once in December, but his office is upstairs along with the district office people and I didn't see him at all.

Report of Proceedings (RP) (June 15, 2006) at 8. Defense counsel requested that the juror be replaced with an alternate juror. Defense counsel argued that as a former employee of a victim in the case, the juror had an "inherent bias." RP (June 15, 2006) at 9. Defense counsel also argued that the juror had some unique knowledge of the Rite-Aid store that could be discussed during jury deliberations. The court then stated:

I think, based on the record, I am certainly left with what she told us. Obviously, if she was still employed at Rite-Aid and if we hadn't realized that, certainly you could perhaps extrapolate from that bias and I certainly would be uncomfortable sitting there. But given the fact she hasn't worked there in four months and that she has no contact or connection with the given answers, I don't think I can remove her for cause. I don't think I have a basis on the record. It's a circumstance, but we get a lot of kind of strange circumstances on the jury. Doesn't mean that I can remove them for cause. So I am going to leave her on at this point.

RP (June 15, 2006) at 10.

¶ 11 Mr. Wilson was convicted as charged. He was sentenced to 19 ½ months' incarceration. This appeal follows.

ANALYSIS

A. In-Chamber Conference with Juror No. 2

¶ 12 Mr. Wilson contends his due process rights were violated because he was not present for the in-chambers conference concerning Juror No. 2, which he maintains amounted to an extension of voir dire.

¶ 13 A criminal defendant has a constitutional right under the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment to be present during all critical stages of the criminal proceeding. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).³ The core of this right is the right to be present when evidence is presented. Id.; see also In re Pers. Restraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835, clarified, 123 Wash.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994). Even in proceedings where the defendant is not confronting witnesses or evidence against him, the due process clause guarantees the defendant's right to be present "`whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'" Lord, 123 Wash.2d at 306, 868 P.2d 835 (quoting Gagnon, 470 U.S. at 526, 105 S.Ct. 1482); see also Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); Snyder v. Massachusetts, 291 U.S. 97, 105-08, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). This right extends to jury voir dire, though the defendant's presence at this stage is only required because it is substantially related to the defense and allows the defendant "to give advice or suggestion or even to supersede his lawyers." Snyder, 291 U.S. at 106, 54 S.Ct. 330; United States v. Gordon, 829 F.2d 119, 124 (D.C.Cir.1987). "[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Snyder, 291 U.S. at 107-08, 54 S.Ct. 330. "The exclusion of a defendant from a . . . proceeding should be considered in light of the whole record." Gagnon, 470 U.S. at 526-27, 105 S.Ct. 1482.

¶ 14 The focus of our inquiry, then, is on whether Mr. Wilson has demonstrated that his presence at the in-chambers conference bore a reasonably substantial relation to the fullness of his opportunity to defend against the charge, or whether a fair and just hearing was thwarted by his absence. Snyder, 291 U.S. at 105-08, 54 S.Ct. 330; Gagnon, 470 U.S. at 526, 105 S.Ct. 1482. Due process does not require a defendant's presence "`when presence would be useless, or the benefit but a shadow.'" State v. Berrysmith, 87 Wash.App. 268, 273, 944 P.2d 397 (1997) (quoting Snyder, 291 U.S. at 106-07, 54 S.Ct. 330), review denied, 134 Wash.2d 1008, 954 P.2d 277 (1998). Thus, for example, where purely legal matters are at issue in a proceeding, a defendant does not generally have the right to be present. Lord, 123 Wash.2d at 306, 868 P.2d 835 (holding defendant had no right to be present during various sidebar conferences and in-chambers hearings on "matters of law," where no prejudice was shown); State v. Bremer, 98 Wash. App. 832, 834-35, 991 P.2d 118 (2000) (holding defendant had no right to be present at in-chambers conference regarding jury instructions).

¶ 15 On facts similar to those here, the United States Supreme Court has held that due process does not require a defendant's presence at in-chambers discussions between a judge and an impaneled juror. See Gagnon, 470 U.S. at 526, 105 S.Ct. 1482 (holding "[w]e think it clear that respondents' rights under the Fifth Amendment Due Process Clause were not violated by the in camera discussion with the juror"); accord United States v. Olano, 62 F.3d 1180, 1190-91 (9th Cir.1995) (rejecting due process challenge where judge had questioned juror about her impartiality outside the presence of defendant and counsel), cert. denied sub nom. Gray v. United States, 519 U.S. 931, 117 S.Ct. 303, 136 L.Ed.2d 221 (1996). No Washington court has addressed this situation, and we do not read the federal authority as suggesting that a defendant's presence at such a conference could never be a condition...