State v. Zimmer
| Decision Date | 21 May 2019 |
| Docket Number | 35705-8-III |
| Citation | 8 Wn.App.2d 1073 |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. BRADLEY DEAN ZIMMER, Appellant. |
UNPUBLISHED OPINION
Bradley Zimmer appeals his conviction for attempting to elude a police vehicle. He also challenges the court's imposition of legal financial obligations (LFOs). We affirm Mr Zimmer's conviction, but grant partial relief as to the LFOs.
Offense conduct
This case began when a Washington State Patrol trooper attempted to stop Mr. Zimmer's car for speeding. The trooper activated his emergency lights and siren, but Mr. Zimmer did not stop. Instead, he led several law enforcement officers on an 11-minute chase. During the chase, Mr. Zimmer not only continued to speed but also committed numerous traffic violations, including running red lights, improper lane changes, and driving on a sidewalk curb. The chase ended when officers deployed spike strips that deflated Mr. Zimmer's tires and forced him to stop.
Mr Zimmer remained in his car for almost two hours while officers attempted to coax him out. It became apparent that Mr. Zimmer was going through a personal crisis, apparently due to a divorce and child custody problems. Mr. Zimmer's entire encounter with law enforcement, from the time of initial pursuit through the standoff, was captured on video by a law enforcement dashboard camera (dash cam).
Pretrial proceedings
The State charged Mr. Zimmer with one count of attempting to elude a pursuing police vehicle.
Mr Zimmer was represented by two different attorneys during the pretrial and trial process. Both relationships were strained. Mr. Zimmer voiced concerns that his attorneys had not shown him a copy of the full dash cam video that documented his standoff with police. He also appeared for trial in his jail uniform against the advice of counsel. Mr. Zimmer repeatedly made clear that he was not particularly concerned with the outcome of his trial, but he wanted to say his "piece" to the jury. 1 Report of Proceedings (RP) (Nov. 13, 2017) at 7-8.
Prior to trial, Mr. Zimmer's attorney moved in limine to exclude the portion of the tape showing Mr. Zimmer's post-chase standoff with police. According to defense counsel, that portion of the video was not relevant to the State's case and was unduly prejudicial to Mr. Zimmer. The State agreed, and the court granted the defense's motion. When Mr. Zimmer protested because he had not seen the entire dash cam video, the court responded that viewing the full video was unnecessary because the standoff portion would not be entered into evidence.
Trial proceedings
At trial, the State's only witness was the Washington State Patrol trooper who had initiated the pursuit of Mr. Zimmer. The trooper recounted the chase's details to the jury. He informed the jury about the chase's duration, route speed, and the number of moving violations committed by Mr. Zimmer. The trooper also explained that a dash cam had recorded the chase in its entirety and he authenticated a copy of the video recording. The State admitted the copy into evidence and played the first 12 minutes for the jury.
Defense counsel did not cross-examine the trooper, nor did defense counsel give an opening statement.
Mr. Zimmer testified in his own defense. He explained that he did not fully recall what had happened the night of his arrest. While he did admit to realizing he was being pursued by the police toward the end of the chase, Mr. Zimmer testified that he did not remember where he was going or how he was driving. He denied that he was attempting to run from the police. But he admitted that the video shows him attempting to elude officers. He explained that he suffers from a mental illness that affects his memory. Mr. Zimmer attempted to tell the jury that, at the time of the chase, his child had recently died and his long-term marriage had ended, causing him to suffer mental distress. The State thwarted that effort by successfully objecting on the basis of relevance.
Following the presentation of the evidence, defense counsel moved for an instruction on the lesser-included offense of failure to obey a police officer. The court granted the motion. Defense counsel's closing argument focused on the lesser-included offense of failure to obey: 1 RP (Nov. 13, 2017) at 146.
The jury returned a guilty verdict on the charge of attempting to elude. Defense counsel requested a jury poll. The court conducted the poll by asking each juror whether the verdict read in court was the juror's individual verdict and the verdict of the jury. During the poll, the court did not request or receive a response from juror 6. Neither the parties nor the court commented on this omission.
The court sentenced Mr. Zimmer to 60 days in jail, with 60 days' credit for time served. It also imposed a $500 victim assessment fee, a $200 criminal filing fee, and a $100 deoxyribonucleic acid (DNA) collection fee.
Mr. Zimmer moved for and was granted an order allowing an appeal at public expense based on his indigence. He now brings this timely appeal.
Jury poll
A defendant has a constitutional right to a verdict rendered by a unanimous jury. State v. Petrich, 101 Wn.2d 566 569, 683 P.2d 173 (1984), overruled on other grounds by State v. Kitchen, 110 Wn.2d 403, 406 n.1, 756 P.2d 105 (1988). After a verdict has been returned, but not yet recorded, doubts about jury unanimity can be addressed by requesting a jury poll under CrR 6.16(a)(3). A jury poll allows the trial court to determine whether "the verdict signed by the [presiding juror] is that of the individual jurors and not one that has been coerced or caused by mistake." State v. Pockert, 49 Wn.App. 859, 860, 746 P.2d 839 (1987). Because jury unanimity is of great importance, yet difficult to test, a court's failure to conduct a poll upon request requires reversal on appeal. Id. at 861-62. Nevertheless, there is no constitutional right to a jury poll. State v. Strine, 176 Wn.2d 742, 750, 293 P.3d 1177 (2013). A jury poll merely constitutes a method of assessing the constitutional right to jury unanimity. It is not a constitutional right in and of itself.
In Mr. Zimmer's case, the trial court conducted a jury poll after receiving a request from the defense. The record indicates that, during the poll, the trial court failed to make inquiry of juror 6. There is no suggestion this juror was deliberately excluded from the poll. Nor is there any indication that juror 6 was trying to avoid the court's inquiry. Instead, the failure to include juror 6 in the jury poll appears to have been an oversight. The oversight was apparently so subtle that no one in the courtroom voiced an objection or otherwise brought it to the attention of the trial court.
Because the right to a jury poll is not constitutional, unpreserved errors in the polling process are subject to waiver under RAP 2.5(a). Just as the failure to request a poll waives the issue of polling on appeal, so too does the failure to object to the trial court's polling method. Had Mr. Zimmer voiced an objection during the polling process, the trial court could have easily remedied its error and included juror 6 in the polling process. Given this circumstance, we will not excuse the failure to preserve an objection to the court's polling process by providing a remedy to the trial court's nonconstitutional error on appeal. See Strine, 176 Wn.2d at 750-51 ().
Conduct of counsel at trial
Citing McCoy v. Louisiana, __ U.S.__, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018), Mr. Zimmer claims that various errors by trial counsel require reversal of his conviction, regardless of prejudice. In McCoy, the United States Supreme Court held that when trial counsel usurps control of an issue that is within a defendant's "sole prerogative," structural error applies and the defendant's conviction must be reversed, regardless of whether trial counsel's behavior was unreasonable or caused prejudice, as contemplated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 138 S.Ct. at 1511. At issue in McCoy was defense counsel's decision to admit guilt during the guilt phase of a death penalty prosecution over the defendant's "express objection." Id. The Supreme Court held that counsel's decision usurped the defendant's core rights and required reversal regardless of prejudice or the reasonableness of counsel's approach. Id. at 1511-12.
McCoy did not change the general rule that "[t]rial management is the lawyer's province." Id. at 1508. Trial counsel decides "'what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.'" Id. (quoting Gonzalez v. United States, 553 U.S. 242, 248, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008)). But a client retains the personal right to decide "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In addition, McCoy clarified that a client also has the personal right "to decide that the objective of the defense is to assert innocence." 138 S.Ct. at 1508.
Mr Zimmer fails to identify any personal rights that were usurped by his trial counsel. He went to trial before a jury. He exercised his right to testify on his own behalf. He has taken an appeal. And his attorney never conceded guilt over Mr. Zimmer's express objection. Giv...
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