State v. Smith
State v. Smith
Opinion of the Court
¶1 Darrel Kantreal Jackson and Tyreek Deanthony Smith appeal their joint jury trial convictions and weapon-enhanced sentences for two counts of aggravated first degree murder, first degree robbery, and first degree burglary. Jackson argues that the trial court violated his constitutional rights to (1) a public trial, by sealing juror
FACTS
I. Murders, Robbery, and Burglary
¶2 On September 23,2007, police found Ruben Doria and Abraham Warren Abrazado
¶3 Doria, who had a medical marijuana license to grow marijuana for personal medicinal use, had also engaged in the illegal sale of marijuana to friends and acquaintances. He generally required everyone to telephone before arriving at his apartment. He kept the money from his sales, large amounts of marijuana, and prescription pills in a safe, which caused his friends concern for his safety. About two to three months before his murder, Doria had begun selling marijuana to Darrel Jackson almost daily. Instead of requiring payment for each transaction, Doria “front [ed]” mari
¶4 Jackson lived with Tyreek Smith, who had previously sold cigars to Doria. Smith knew Pierre Spencer, from whom he purchased a .357 revolver some time before the murders.
¶5 The night before the murders, Jackson, Smith, and Spencer met to discuss robbing Doria, whom, they believed, would not call the police because of his drug dealings. They planned that Jackson would call Doria under the pretext of purchasing marijuana, but in reality, they would be seeking an opportunity to gain entrance to Doria’s apartment. They did not discuss murder or using masks or duct tape. Spencer offered an inactive cell phone to aid during the robbery. Jackson, Smith, and Spencer purchased a phone card to activate service on the phone, which Smith generally possessed.
¶6 That same night, the three men drove to Doria’s apartment, Jackson phoned Doria with the newly activated cell phone, and Jackson went inside and purchased marijuana from Doria. Because several others were present inside Doria’s apartment, Jackson, Smith, and Spencer abandoned the robbeiy plan and decided to tiy again the next day. The next morning, Spencer picked up Smith and drove him to an acquaintance’s apartment, which Smith entered briefly; Smith returned with a rifle wrapped in a blanket.
¶7 Spencer and Smith picked up Jackson, and they returned to Doria’s apartment to commit the planned robbery. After they saw Doria’s roommate, Warren Abrazado, drive away, Jackson called Doria from the newly activated cell phone,
¶8 When Jackson returned to the front room with the safe, Smith said they had to “get rid of” Doria because he could potentially identify them. 11 VRP at 1450. Someone knocked on the door, and Doria’s phone began to ring. After the person at the door left, Spencer resumed carrying marijuana plants to the front room. When Spencer next returned, he saw Smith stabbing Doria. Because they “were in this all together,” Smith handed the knife to Jackson, who stabbed Doria once; Jackson then handed the knife to Spencer, who also stabbed Doria once. 11 VRP at 1458. After checking Doria’s pulse, Smith slit Doria’s throat.
¶9 Jackson, Smith, and Spencer were about to load the plants into their vehicle when they heard keys unlocking Doria’s apartment door. Abrazado entered, saw Doria’s body, and said, “Oh, my God, please don’t kill me!” 11 VRP at 1464. Jackson and Smith grabbed Abrazado and pulled
¶10 On returning to Jackson’s apartment, Smith told Jackson and Spencer that he realized they had left their used latex gloves in Doria’s apartment. All three men returned to Doria’s apartment; Smith went inside, retrieved the gloves, and took another marijuana plant and a bag of marijuana. About four months later, police arrested Jackson and Smith on suspicion of the crimes. Jackson and Smith made incriminating statements against each other. Police also arrested and charged Spencer, who confessed and gave a statement implicating all three men.
II. Peoceduee
¶11 The State charged Jackson, Smith, and Spencer with two counts of aggravated first degree murder, one count of first degree robbery, and one count of first degree burglary, with deadly weapon enhancements on each count. The State later amended the information to add two counts of felony murder against Jackson and Smith and a firearm sentencing enhancement to all counts.
A. Spencer’s Plea Agreement with the State
¶12 Spencer entered into a plea agreement with the State, under which he would “immediately enter guilty pleas” to the original charges but if he testified truthfully at Jackson and Smith’s trial he might withdraw his guilty pleas and instead plead guilty to first degree murder and first degree manslaughter, for which, instead of life imprisonment without parole, he would receive a sentence between 240 and 320 months (20-26 years) for first degree murder with his sentence for first degree manslaughter running
B. Joinder and Redaction of Codefendants’ Statements
¶13 After conducting separate CrR 3.5 hearings for Jackson, Smith, and Spencer, the trial court ruled their statements admissible. Smith and Jackson moved for separate trials under CrR 4.4(c)(1) and Bruton,
¶14 The parties and the trial court worked cooperatively to redact the statements. Despite maintaining that redaction would be insufficient and that only severance would cure the constitutional violation, Smith participated in these efforts to redact the statements. Based on Smith’s expressed preference, the trial court redacted Spencer’s name, in addition to Jackson’s name; the other parties deferred to Smith’s preference.
C. Juror Selection
¶15 The parties agreed to the use and to the content of the juror questionnaires, including the following language telling the jurors that the court clerk would seal their information:
*841 The information obtained through this questionnaire will be used solely for the purpose of selecting a jury. The questionnaire will become part of the court’s permanent record and will not be distributed to anyone except the lawyers and the judge. The original will be filed under seal and no one will be allowed access except by court order.
Jackson Clerk’s Papers (JCP) at 296 (emphasis added).
¶16 When the State asked about sealing the juror questionnaires, the trial court explained its normal procedure: After completing jury selection, the parties return their copies of the juror questionnaires to the court’s judicial assistant for shredding. The court retains the original set of questionnaires and orders them sealed, giving the jurors "some expectation of privacy.” 1 VRP at 70. Following this explanation, the trial court specifically asked Jackson if this procedure was satisfactory; Jackson replied that it was. Jackson, Smith, and the State then signed a stipulation, agreeing to the trial court’s proposal for sealing the jury questionnaires.
¶17 The entire jury voir dire occurred on the record in open court. When individual jurors indicated a preference to discuss specific issues privately, the trial court and counsel questioned them in open court, on the record, in the presence of all parties. The trial court neither closed the courtroom nor excluded the public at any time. After the parties completed voir dire, the trial court ordered the jury questionnaires sealed.
D. Trial
1. Opening statements
¶18 The State’s opening statement outlined Jackson’s and Smith’s participation in the robbery, told the jury that they had given statements to police, and explained about Spencer’s participation in the crimes and his plea bargain with the State:
The third villain who was responsible will also be here in court. His name is Pierre Spencer. He will come here and tell you how*842 Warren Abrazado and Ruben Doria died and why. He was a codefendant with the two defendants here before you. He has agreed with the State of Washington to tell you the truth about what happened in exchange for a fairly modest leniency. He has stepped up. He has pled guilty to the charges against him. You will learn that he is looking at approximately 30 years of hard time in prison. I don’t mean 30 years’ sentence, serve five years, and get out on [parole]. The evidence will show you that he[’s] looking at three decades in prison as punishment for his role, and that is after providing truthful testimony to you.
5 VRP at 516-17 (emphasis added). Neither Smith nor Jackson objected.
¶19 Smith’s opening statement told the jury that Spencer’s testimony would be “incredible”
¶20 Jackson’s opening statement told the jury that Jackson had clearly been involved in planning the robbery. But when Jackson’s counsel inadvertently mentioned codefendant Smith’s first name, “Tyreek,” as having gone with Jackson and others to Doria’s apartment the night of the robbery, Smith objected and moved for a mistrial. 5 VRP at 577. Smith argued that by naming him, Jackson had rendered futile the redacted codefendants’ statements and the other accommodations for their joint trial. The trial court denied Smith’s motion for mistrial and, instead, accepted Jackson’s offer to tell the jury that he had been mistaken. Again addressing the jury, Jackson’s counsel rephrased, “[L]et me back up and tell you that I misspoke in my last statement. That Mr. Jackson, in his statement, said that he and others went to the apartment.” 5 VRP at 579
2. Spencer’s testimony
¶21 Out of the jury’s presence, the State offered two exhibits — Spencer’s redacted plea agreement with the State and Spencer’s statement on plea of guilty. The State explained that the parties had previously agreed to redact the section discussing polygraph tests from Spencer’s plea agreement. When the trial court asked whether this section had “been redacted to everybody’s satisfaction,” Jackson, Smith, and the State all responded, “Yes.” 10 VRP at 1349. The trial court then admitted both Spencer’s redacted plea agreement and his guilty plea statement without objection by Jackson or Smith.
¶22 After the jury returned to the courtroom, the State asked Spencer on direct examination what type of information he was bound to provide under his plea agreement with the State. Spencer replied that he was obligated to cooperate with the investigation and to give a truthful account of the events that had occurred in Doria’s apartment. This portion of Spencer’s testimony proceeded as follows:
[Prosecutor]: And was it, basically, your understanding that you had an ongoing duty to provide truthful information in connection with this case?
[Spencer answered in the affirmative.]
[Prosecutor]: . . . [I]f you have failed to comply with the Plea Agreement, what’s your understanding as to what happens?
[Spencer]: It is life without parole.
[Prosecutor]: If you provide information that is not truthful, what is your understanding of what happens to you?
[Spencer]: That, I will get life without parole.
[Prosecutor]: If you provide truthful information, if you cooperate, if you meet with the attorneys for both sides, do everything*844 that you are supposed to do, how much time do you understand that you are looking at at that point?
[Spencer]: 25 years, something like that.
10 VRP at 1354-55 (emphasis added). Neither Smith nor Jackson objected.
¶23 After reviewing the agreement terms with Spencer, the State asked:
[Prosecutor]: So what happens to you today, Mr. Spencer, if you say something that is not true?
[Spencer]: My plea agreement is void.
[Prosecutor]: What happens to you?
[Spencer]:... I will get life without parole.
10 VRP at 1362 (emphasis added). Again, neither Smith nor Jackson objected.
¶24 On cross-examination by Smith, Spencer testified that when giving his initial statement to police, he had not been aware that the State was considering offering him leniency. Smith also asked whether (1) under the terms of the plea agreement, Spencer would plead guilty to first degree murder and first degree manslaughter; and (2) Spencer expected to be sentenced to 25 years in prison. Spencer replied, “Yes,” to both questions. 11 VRP at 1515. On redirect, the State asked Spencer:
Is it your understanding that you will be allowed to withdraw your plea and enter a plea to reduced charges of Murder in the First Degree and Manslaughter in the First Degree no matter what you say here today or no matter whether you tell the truth?
11 VRP at 1591. The trial court sustained Jackson’s objection that this question “mischaracterize[d] the agreement.” 11 VRP at 1591. The State then rephrased the question:
[Prosecutor]: [I]s it your understanding that you will get that deal regardless of whether you tell the truth?
[Spencer]: No sir.
¶25 On re-cross-examination by Jackson, Spencer testified:
[Jackson’s counsel]: Isn’t it true that the person who decides whether or not you are being completely truthful is sitting right here, the prosecutor?
[Spencer]: I don’t think so, sir.
[Jackson’s counsel]: These 14 people, here, don’t decide, do they?
11 VRP at 1599. The trial court sustained the State’s objection that the statement was argumentative.
3. Motions for mistrial and to dismiss
¶26 After the State rested, Smith renewed his motions for mistrial and severance. Pointing to Jackson’s redacted statements — which substituted “someone else” for “Spencer” as the person who had first approached, hit, and stabbed Doria — Smith argued that the jury would attribute the described actions to him, rather than to Spencer, and that such attribution would prejudice him (Smith). 13 VRP at 1820. The trial court denied Smith’s motions, ruling that the redactions complied with Bruton and that the jury had been properly instructed.
4. Closing arguments
¶27 During closing argument, the State asked the jury to evaluate Spencer’s demeanor on the stand, reminded them that they were the sole judges of credibility, and argued:
[Spencer] was told, from day one, you need to tell the truth. Never was he told, hey, you need to implicate Jackson; you need to implicate Smith; you need to make the State’s case work. What he was told, from day one, was that you have to tell the truth. He knows because he has signed this written plea agreement that tells [him] in no uncertain terms, if you don’t*846 tell the truth, life in prison, no parole. That is a huge incentive for him to come in here and take his oath seriously and tell you the truth.
14 VRP at 1884-85. Neither Smith nor Jackson objected.
¶28 In Smith’s closing argument, he emphasized the trial court’s instruction for the jury to evaluate Spencer’s testimony with “great caution.” 14 VRP at 1950. In rebuttal, the State agreed, reiterating that it was appropriate for the jury to look at Spencer’s testimony with caution.
E. Verdicts and Sentences
¶29 The jury found both Jackson and Smith guilty of all six counts; the jury also answered “yes” on the special verdicts for the aggravating sentencing factors and the deadly weapon enhancements (being armed with both a knife and a gun). JCP at 255-64; Smith Clerk’s Papers at 82-88. At sentencing, the trial court merged counts 1 and 3 and also merged counts 2 and 4, imposed sentences of life in prison without parole for the aggravated murder counts and high standard-range sentences for the first degree robbery and first degree burglary counts, and added the weapon enhancements.
¶30 Jackson and Smith appeal their convictions and enhanced sentences.
ANALYSIS
I. Sealing of Jury Questionnaires
¶31 Jackson argues that the trial court violated his right to a public trial by sealing the jury questionnaires without first conducting a courtroom-closure analysis under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). This argument fails. We hold that the trial court’s sealing of the confidential juror questionnaires did not constitute a courtroom closure and, therefore, no Bone-Club analysis was required.
¶33 As we recently held in In re Personal Restraint of Stockwell, 160 Wn. App. 172, 180-81, 248 P.3d 576 (2011), petition for review filed, No. 85669-9 (Wash. Mar. 2, 2011), the trial court’s sealing of juror questionnaires after voir dire is not “structural error”;
¶34 As we noted in Stockwell, sealing juror questionnaires after voir dire, at most, affects only the public’s right to “open” information connected to the trial. 160 Wn. App. at 181. Here, however, the sealing procedure did not affect the public’s right to open information because Jackson and Smith used the “content of the questionnaires” to question the jurors “in open court, where the public could observe.” Stockwell, 160 Wn. App. at 183 (Van Deren, J., concurring).
II. No Prosecutorial Misconduct — “Vouching”
¶35 Jackson next argues that we should reverse his first degree premeditated murder convictions because prosecutorial misconduct deprived him of his constitutional due process right to a fair jury trial, a challenge that he attempts to raise for the first time on appeal. More specifically, he argues that (1) the prosecutor acted with ill intent in recounting Spencer’s plea agreement to testify truthfully, thereby impliedly assuring Spencer’s veracity; and (2) this improper vouching was flagrant and ill intentioned and allows him (Jackson) to raise this challenge for the first time on appeal, despite his failure to object below. We disagree.
¶36 Because Jackson clearly announced at the trial’s outset his intent to attack Spencer’s credibility based on his plea bargain with the State, the State was entitled to engage in anticipatory rehabilitation of this witness. Therefore, the State’s direct examination of Spencer about his plea bargain agreement to testify truthfully cannot be said to have been “ ‘flagrant and ill-intentioned,’ ” the standard that Jackson must but cannot meet where he failed to object below.
¶38 A prosecutor has reasonable latitude to draw inferences from the evidence, including inferences about witness credibility. State v. Gregory, 158 Wn.2d 759, 810, 147 P.3d 1201 (2006). Nevertheless, it is improper for the State to vouch for the credibility of a government witness; vouching may occur when the prosecution places the prestige of the government behind the witness or indicates that information not presented to the jury supports the witness’s testimony. United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980), cert. denied, 452 U.S. 942 (1981). Four justices, plus
¶39 Both the lead and concurring opinions in Ish, again, eight justices, also noted that under the circumstances in that case, it was not reversible error for the State to have anticipated a credibility attack on its witness and to rehabilitate its witness in advance of this inevitable attack: Where “there is little doubt” that the defendant will attack the veracity of a State’s witness during cross-examination, for example, the State is entitled to engage in preemptive questioning of its witness on direct to “take the sting” out of the inevitable damaging cross-examination. Ish, 170 Wn.2d at 199 n.10. Such is the case here. During pretrial motions in limine seeking permission to address Spencer about collateral matters, both Jackson and Smith indicated their intent to impeach Spencer’s credibility.
¶40 As expected, Smith immediately attacked Spencer’s credibility in his opening statement:
When somebody says something is incredible, it can be either astonishing and shocking or it can be not believable.
You are going to hear testimony at this trial from a witness that is going to be incredible. When I use that word, I mean— I’m using it with both of its meanings. Both of its connotations. That witness is Pierre Spencer. Pierre Spencer is going to give you incredible testimony. In order to understand why his testimony is incredible, we need to back up and start at the beginning of the story.
5 VRP at 556.
Mr. Spencer had an advantage. He knew what the police knew.... His attorney has access to ... police reports, autopsy reports, witness statements, Mr. Smith’s statement, Mr. Jackson’s statement.
*851 The prosecutor’s office was interested in hearing his side of the story. The prosecutor’s office believed that they had the three right people, Mr. Spencer, Mr. Smith, and Mr. Jackson. They wanted confirmation. They were willing to make a bargain in exchange for that information.
Mr. Spencer ... told an incredible story.
Mr. Spencer entered into a deal... where he pled guilty to two offenses. I believe the first was for the murder. If he comes in and testifies and if he tells you all the same story that he told the police... he will be allowed to withdraw his guilty plea, and he will get one count of First Degree Murder and one count of First Degree Manslaughter. He will be sentenced to approximately 30 years in prison. He is a young man, mid-20’s. His option was life without [parole] or to get out in his 50’s.
5 VRP at 568-71. Jackson and Smith left no doubt they would attack Spencer’s credibility based on his plea agreement once Spencer took the witness stand.
¶41 Given these background facts, the State correctly anticipated a defense attack on Spencer’s credibility as a witness, based on his plea agreement. Jackson failed to object below to Spencer’s testimony about his plea bargain agreement to testify truthfully. Jackson now fails on appeal to show that the State’s elicitation of this testimony on direct examination was “flagrant and ill-intentioned.” Br. of Appellant Jackson at 34. Accordingly, we hold that Jackson cannot raise this issue for the first time on appeal as grounds for reversing his conviction, and we do not further consider it.
¶42 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
Much of the record refers to Mr. Abrazado’s middle name “Warren,” the name he commonly used.
Phone records showed that this call was made at 1:46 pm and that the newly activated cell phone also called Doria’s phone at 1:44 pm and 1:51 pm.
Phone records showed the following additional earlier calls on the day of the robbery and murders: (1) two phone calls between the newly activated cell phone and Smith’s ex-girlfriend (Natausha Sabin-Lee) shortly after 11:00 am; (2) a call between the newly activated cell phone and Smith’s relatives in Georgia at 11:23
Phone records for calls made during the time of the robbery and murders showed that the newly activated cell phone called Spencer’s cell phone at 3:04 and 3:14 pm; Spencer’s cell phone called the newly activated cell phone at 3:22 pm; for the fourth time that day, the recently activated cell phone called Doria’s number at 4:21 pm; four minutes later, at 4:25 PM, the recently activated cell phone called Smith’s relatives in Georgia; and the same newly activated cell phone made another call to Smith’s ex-girlfriend, Sabin-Lee, at 5:33 pm.
Bruton, 391 U.S. 123.
5 VHP at 555.
5 VRP at 573.
An error is “structural” when it renders a criminal trial “ ‘ “fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” ’ ” Stockwell, 160 Wn. App. at 180-81 (quoting State v. Momah, 167 Wn.2d 140, 149, 217 P.3d 321 (2009) (quoting Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)), cert. denied, 131 S. Ct. 160 (2010)).
We decline to follow State v. Coleman, 151 Wn. App. 614, 214 P.3d 158 (2009), in which Division One of our court held that the trial court waB required to conduct a Bone-Club analysis before sealing juror questionnaires that contained information about the jurors’ sexual history. See also State v. Beskurt, 159 Wn. App. 819, 246 P.3d 580 (2011), petition for review filed, No. 85737-7 (Wash. Mar. 16,2011). We find more persuasive Judge Van Deren’s concurring opinion in Stockwell, 160 Wn. App. at 182.
In so holding here, it is not our intention to condone or to invite improper vouching.
After similarly redacting a provision requiring a State’s witness to take a polygraph, the trial court admitted the plea agreement over Ish’s objection and allowed the State to examine the witness about his promise to testify truthfully. Ish, 170 Wn.2d at 194.
Concurring Opinion
¶43 (concurring) — To the extent that my having signed the majority opinion in Stockwell
Review denied for defendant Smith and review deferred for defendant Jackson at 173 Wn.2d 1007 (2012).
In re Pers. Restraint of Stockwell, 160 Wn. App. 172, 248 P.3d 576 (2011), petition for review filed, No. 85669-9 (Wash. Mar. 2, 2011).
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995); Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).
Reference
- Full Case Name
- The State of Washington v. Tyreek Deanthony Smith, Appellant The State of Washington v. Darrel Kantreal Jackson
- Cited By
- 11 cases
- Status
- Published