State of Washington v. Alexander Travis Johnson ( 2018 )

FILED
MAY 24, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34710-9-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ALEXANDER TRAVIS JOHNSON, )
)
Appellant. )
FEARING, J. — A jury found Alexander Johnson guilty of harassment, second
degree assault, malicious harassment, and third degree malicious mischief. On appeal,
Johnson challenges evidentiary rulings, the performance of his trial counsel, the trial
court’s handling of his unannounced absence from trial, and the objectivity of a juror.
We find error in one evidentiary ruling but deem the error harmless.
FACTS
This prosecution concerns the relationship between defendant Alexander Johnson
and victim Eric Leggett, occupants of adjoining apartment buildings in downtown
Spokane. Alexander Johnson is the significant other of Noelle Beck. Noelle Beck
resided at 319 Cornerstone Courtyard Apartments (Cornerstone) in Spokane, operated by
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the Spokane Housing Authority. Beck’s apartment lay on the third floor of the
apartments, with windows facing Adams Street and a side alley.
Alexander Johnson regularly stayed in Noelle Beck’s apartment despite being an
unauthorized guest. Rules promulgated by the Spokane Housing Authority barred
unauthorized guests from staying beyond fourteen days. Johnson, with the assistance of
the Cornerstone manager Melanie Kurtzhall, applied to the housing authority to add his
name to Beck’s lease. The housing authority denied Johnson’s application.
Eric Leggett occupied a first floor unit in an apartment building adjoining
Cornerstone. Presumably because of Leggett’s and Alexander Johnson’s smoking habits,
the two became acquainted when smoking cigarettes on the sidewalk adjoining the two
apartment buildings. During these respites, the two discussed many topics, including
politics and religion.
The cordial relationship between Eric Leggett and Alexander Johnson deteriorated
when Leggett told Johnson he was gay and HIV positive. Thereafter and on March 20,
2016, Leggett found four threatening notes taped to his apartment window. The first note
read: “‘Wish for a quick death to,’” “‘Eric.’” Report of Proceedings (RP) at 276. The
second declared: “‘To,’” “‘Eric, don’t fuck with us.’” RP at 278. The third stated:
“‘To,’” “‘Eric,’” “‘we will take the man on the couch and your fag friends too.’” RP at
279. The fourth and final note announced: “‘To Eric,’” “‘Eric, do not disrespect anyone
with your comments. You will be hurt and kept alive.’” RP at 280. Leggett reported the
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menacing messages to Cornerstone manager Melanie Kurtzhall, who advised Leggett to
contact the police.
Melanie Kurtzhall reviewed Cornerstone surveillance tapes following her
conversation with Eric Leggett. The footage showed Alexander Johnson pacing outside
the Cornerstone apartments before placing objects on an exterior window of the adjoining
building and walking away. Kurtzhall also called the police who investigated and took
possession of the notes.
On April 12, 2015, Eric Leggett heard a sporadic tapping noise, like the sound of
pebbles, at his window. Leggett exited his apartment, checked the alleyway abutting his
apartment’s ground floor window, and, after seeing no one, returned inside his apartment.
The tapping sound resumed, which lured Leggett outside again. A fearful Leggett also
called 911. He noticed a crack in his glass window, and, while still on the phone with
law enforcement, felt the pop of a bullet hit his skin, which sensation caused him to drop
his phone. He deemed his life to be in danger.
Spokane Police Officer Joshua Laiva responded to Eric Leggett’s emergency call.
Officer Laiva saw a bright red welt on Leggett’s ribcage near his armpit with a
corresponding projectile hole in his shirt. Leggett told Officer Laiva that the shot
originated from the third floor of Cornerstone and that he suspected Alexander Johnson
to be the shooter.
Alexander Johnson resided with Noelle Beck on April 12. Beck allowed Officer
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Joshua Laiva to view her apartment, although Johnson was absent. Officer Laiva
observed windows on the south wall of the apartment. One window was open one inch
and its blinds pushed to the left. Officer Laiva also noticed Eric Leggett’s window was
broken, the window screen had a hole from a projectile, and the window framing had
been damaged. Laiva concluded that the damage to Leggett’s window came from a
projectile moving at a downward angle.
Melanie Kurtzhall viewed security footage again after learning of Eric Leggett’s
injury. Kurtzhall saw Alexander Johnson exiting and entering Cornerstone. Once inside
Noelle Beck’s apartment, Johnson peered out a window while holding a rifle. While
outside, Johnson paced on the sidewalk. A caseworker for tenants at Cornerstone, Angel
Willson, also saw Johnson that day with a rifle.
Later on April 12, Melanie Kurtzhall noticed Alexander Johnson sitting in his car
outside Cornerstone. Johnson motioned as if shooting an imaginary gun at Kurtzhall. A
frightened Kurtzhall returned inside Cornerstone.
On the evening of April 12, Jack Swanstrom visited his girlfriend’s apartment at
Cornerstone. Swanstrom saw Alexander Johnson bearing a rifle. Johnson previously
told Swanstrom he believed Eric Leggett had flirted with him, which purported seductive
behavior bothered Johnson.
Spokane County Detective Randy Lesser reviewed Cornerstone security footage
and saw on the videotape Alexander Johnson, fourteen minutes before Eric Leggett’s
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injury, walking around the apartments with a pellet gun. Detective Lesser questioned
Johnson several days after the shooting. Johnson denied shooting Leggett, but admitted
to owning a pellet gun, which law enforcement seized. Johnson acknowledged to Lesser
that he knew of Leggett’s homosexuality.
PROCEDURE
The State of Washington charged Alexander Johnson with felony harassment,
second degree assault, malicious harassment, and third degree malicious mischief.
Most of the issues on appeal concern trial procedure. Trial commenced on June
20, 2016. The first day of trial involved jury selection and a hearing to admit Alexander
Johnson’s statements to law enforcement. The following exchange occurred, during voir
dire, between the State’s attorney and prospective juror two:
[Prosecutor]: One of the things that [defense counsel] talked about
was having evidence to prove something and believing in something. And
I can’t remember whether it was juror No. 5—sorry, you would think I
could remember ten minutes ago, but if—and I’ll ask juror No. 2. If I
present evidence to you to prove a proposition and the evidence does prove
that proposition, can you believe that?
JUROR NO. 2: Yes. I have faith that you are giving us the truth and
that the evidence that you’re giving us is reliable, that the evidence that this
party would give is reliable, so I would say if evidence is presented in
court, I would believe it.
RP at 123-24. No one asked juror two any further questions on this same subject.
Defense counsel exercised no challenges for cause and no peremptory challenges. Juror
two served on the jury.
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On the second day of trial, Alexander Johnson was present when the court
convened in the morning. The trial court recessed around 9:45 a.m. for five minutes,
which recess Johnson used for a restroom break. Johnson did not return to the courtroom
thereafter. For the next half hour, defense counsel phoned Johnson to inquire of his
location. Law enforcement also searched for Johnson to no avail. The State informed the
trial court of a desire to continue with the trial nonetheless. No witnesses had yet to
testify.
The trial court issued a bench warrant for Alexander Johnson’s arrest. The court
then commented:
His absence does appear to be voluntary on the face but I suppose
there could be an explanation that we’re otherwise unaware of. I’ll give
him the benefit of the doubt but if he’s not here at 1:30 and we haven’t
otherwise located him in an emergency setting . . . it’s inconvenient to our
jurors but I don’t want to have to try this case again. We don’t need to
declare a mistrial, which is my first concern.
....
So again, Counsel, I apologize for the inconvenience, but I guess in
fairness it’s not my fault. It’s not your fault, and [defense counsel], just so
we have a clear record . . . I would be surprised if we locate [Johnson] in
an emergency room or someplace else. I think he’s just trying to avoid
being here for whatever reason . . . but that’s besides the point. If he shows
up, and if he doesn’t, we’ll go forward without him at 1:30.
RP at 229-231. Following this colloquy, the court recessed for the remainder of the
morning and the noon hour. When the court reconvened in the afternoon, the trial court
remarked:
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[F]irst of all . . . in this case [Alexander Johnson] is not just late or
delayed and whether he’s truly just not coming back, and we’d been
waiting since thereabouts 10:00 this morning. It is now about 20 minutes to
the hour, 20 minutes to 2:00 in the afternoon. Seems pretty clear to me
[Johnson] isn’t going to return and during our recess we checked the local
hospitals. Might seem like an exercise in silliness but just to be sure that
Mr. Johnson wasn’t there, and we also checked our jail roster in case in
some fashion he happened to get picked up. No sign of Mr. Johnson
anywhere.
We also checked our clerk’s office to see if for some reason he
might be there. There is no sign of him and I’m satisfied that I’ve laid
down enough of a record, as has counsel, and foundation for us to go
forward with the trial without [Johnson] here.
RP at 237-38. Trial then proceeded during the afternoon with opening statements and
testimony from some of the State’s witnesses.
Cornerstone manager Melanie Kurtzhall testified she felt frightened when
Alexander Johnson motioned his finger, as a gun, in her direction. Kurtzhall added that
she knew that Johnson had already shot Eric Leggett, which knowledge enhanced her
fear.
The State questioned Eric Leggett about who he believed the “shooter” to be:
[DEPUTY PROSECUTOR]: And who was the person you thought
responsible for your injuries?
[LEGGETT]: Alex Johnson.
[DEPUTY PROSECUTOR]: Okay. And that’s the same Alexander
Johnson who you believe put the notes on your window?
[LEGGETT]: Yes, ma’am.
[DEPUTY PROSECUTOR]: Okay. Now, is it because of the
incident from March 21 that you believed Mr. Johnson to be responsible for
the April 12 incident?
[LEGGETT]: That and the vantage of the – of their apartment, yes,
to be able to shoot both the window and me in a different perspective. I
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thought it was very likely and I directed the officers to go that direction
with their investigation.
RP at 356-57.
The trial court admitted the pellet gun confiscated from Alexander Johnson as an
exhibit. Detective Randy Lesser identified the gun as a Crosman Fury NP pellet gun, and
he testified that the gun looks like a rifle to the average person. A scope sits on the top of
the gun’s barrel, and the scope allows the shooter to aim from afar. Detective Lesser
averred that warning labels accompany the purchase of the pellet gun. Lesser researched
the labels on the manufacturer’s Internet website. He read the label warning to the jury:
“Warning: Not a toy. This air gun is recommended for adult use
only. Misuse or careless use may cause serious injury or death. May be
dangerous up to 600 yards.”
. . . Police and others may think it is a firearm.
....
If you’re firing a lead pellet, the velocity is up to 1,000 feet per
second. If you’re firing an alloy pellet, the velocity is up to 1200 feet per
second.
RP at 396-97.
The third day of trial, June 22, 2016, began with more testimony from a State
witness without Alexander Johnson present. After only minutes of testimony and with
the jury excused, the trial court announced that law enforcement had surrounded a home
occupied by Johnson and officers were attempting to garner Johnson’s cooperation in
returning to the courthouse or seize his person and bring him to the courthouse. The
court then recessed for the rest of the morning.
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By early afternoon, June 22, law enforcement held Alexander Johnson in custody.
At 1:40 p.m., the trial court reconvened, and the court commented:
It’s about 20 minutes to 2:00 and it’s the 22nd of June, 2016, and we
talked before the break about potential for [Alexander Johnson] to join us
again since he’s been absent from the trial after we recessed after the jury
was selected and he didn’t come back but now I understand [Johnson] is in
custody. He is actually physically down here on the County property. He
is not, as the jail staff just advised me, he is not portable in terms of his
appearance, so I guess I just wanted to, Counsel, run it by all of you about
procedurally that, to be quite frank, I’ve never had a situation like this
develop yet. I’m not sure if we should go forward right now. I mean I’ve
got jurors waiting or whether we stop and get him over here and he—if he
wants to be in the courtroom. I can’t have him in the courtroom looking the
way I understand he looks based on what the jail has told me.
....
He [Alexander Johnson] looks like he’s been in a scuffle. Let me
put it that way, that’s what I understand. His pants are torn up. He’s got
jail slippers. But then again, the concern I have is . . . arguably he’s already
indicated his intentions to not be here. Maybe I need to get him over here
for him to formally tell us on the record what he would like to do one way
or another. If he doesn’t want to be here for the rest of the trial, maybe he
can waive that appearance on the record.
RP at 437-38. Counsel and the trial court discussed questions surrounding Johnson’s
return to the courtroom, the physical appearance of Johnson, and the admissibility of
evidence of Johnson’s absconding.
Law enforcement transported Alexander Johnson to the courtroom that afternoon.
The trial judge and Johnson engaged in the following conversation after Johnson’s
arrival:
THE COURT: Mr. Johnson, good afternoon.
[JOHNSON]: Good afternoon.
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THE COURT: Sir, I just wanted to verify you had a chance to speak
with [defense counsel], correct?
[JOHNSON]: Yes, sir.
THE COURT: And have you made a decision, sir, that you would
like to remain in the courtroom for the balance of the trial?
[JOHNSON]: Yes, sir.
THE COURT: Okay. And you feel that’s a decision you made after
being fully advised by [defense counsel] regarding your rights? To remain
in the trial?
[JOHNSON]: Yes.
THE COURT: Okay. And, sir, you do understand that [defense
counsel] explained to you, you do have a right not to be present at trial if
you want, as long as you make a knowing and voluntary waiver of that.
But so I’m clear, sir, your determination is you would like to stay, you
would like to participate in the trial and be here, correct?
[JOHNSON]: Correct.
RP at 446-47.
With Alexander Johnson present, Detective Randy Lesser completed his
testimony. Johnson called no witnesses and the trial recessed for the third day.
On the fourth day, counsel delivered their respective summations. Defense
counsel commented:
The State talked about the weapon [pellet gun] as a firearm. It does
fire a projectile. The State talked about the foot-per-second velocity of
whether it’s a lead pellet or an alloy pellet. We know that where the
window was shot there are some of what [Eric Leggett] believes were the
pellet but the detective says, you know, he can’t tell. Was it lead at 1,000
feet per second or an alloy at 1200 feet [per] second . . . .
The State also talked to you about that the weapon may be
dangerous up to 600 yards. The distance here is shorter than 600. I don’t
think anybody would argue that. The quote she had was that “it may be
dangerous up to 600 yards.” Not deadly, may be. At one point it can
possibly cause death under the circumstances in which it is used. But it
doesn’t say what those circumstances were.
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I think you have to look at the day that this assault allegedly took
place. There are assumptions that the shot came from apartment 319,
which is the residence of [Noelle Beck] and [Alexander Johnson]. There’s
no indication at the time that the shot, and this was testimony, who was in
the apartment.
RP at 540-41. The jury found Alexander Johnson guilty of all four crimes charged:
felony harassment, second degree assault, malicious harassment, and third degree
malicious mischief.
At the sentencing hearing, the State mentioned that it had filed bail jumping
charges against Alexander Johnson because of his absence from some of the trial. The
State also commented that the sentencing court could consider Johnson’s absconding
from the courtroom when sentencing. During the hearing, the court afforded Johnson an
opportunity for allocution. The sentencing court did not ask Johnson to explain his
absence, however. Johnson declined to render any statement.
LAW AND ANALYSIS
Juror Bias
Issue 1: Does Alexander Johnson show actual bias of juror two?
Answer 1: No.
On appeal, Alexander Johnson first assigns error to the trial court’s failure to
remove juror two from jury service and his trial counsel’s failure to object to the seating
of juror two. Johnson contends that juror two’s response to a question during voir dire
showed actual bias against him because the juror declared he or she would believe the
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State’s evidence. We previously quoted the colloquy between the State’s attorney and
juror two but repeat it here, because of the critical nature of the precise comments:
[Prosecutor]: One of the things that [defense counsel] talked about
was having evidence to prove something and believing in something. And
I can’t remember whether it was juror No. 5—sorry, you would think I
could remember ten minutes ago, but if—and I’ll ask juror No. 2. If I
present evidence to you to prove a proposition and the evidence does prove
that proposition, can you believe that?
JUROR NO. 2: Yes. I have faith that you are giving us the truth and
that the evidence that you’re giving us is reliable, that the evidence that this
party would give is reliable, so I would say if evidence is presented in
court, I would believe it.
RP at 123-24.
The State understandably asked juror two if the juror would accept a proposition if
the State proved the proposition. The question indirectly sought to determine if the juror
would acquit the defendant despite the State proving all of the elements of the crime.
The question thereby searched for bias against the prosecution. The question did not
query the juror as to whether he or she will accept all of the evidence presented by the
State as the truth. The question did not ask if the juror will accept the evidence of the
State regardless of whether Alexander Johnson presents conflicting evidence or
regardless of whether Johnson presents no evidence.
Juror two’s answer journeyed beyond the State’s question. In addition to the juror
affirming that he or she would convict if the State proved the elements of the crime, the
juror disclosed that he or she would accept all State’s evidence as the truth. This
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disclosure would suggest bias in favor of the State, but the juror did not end his or her
answer there. The juror also stated that she or he would deem all evidence presented by
“this party” as reliable. RP at 124. The juror did not name to whom “this party” referred.
Nevertheless, we suspect “this party” references Alexander Johnson, since the juror
already mentioned that she or he would accept the evidence presented by the State as
dependable, and the trial involved no other party beside Johnson.
The unique response of juror two raises the question of whether a juror holds
actual bias if the juror impliedly states that he or she will consider the State’s evidence as
the truth if the defendant presents no countervailing evidence. The juror answer suggests
that the juror will, contrary to constitutional principles, ignore a presumption of
innocence and require the defendant to bear a burden of producing evidence in order to
acquit himself rather than demanding that the State prove its case beyond a reasonable
doubt. Neither party addresses this nuance in his or its briefing.
Alexander Johnson contends that juror two’s statement reveals actual bias. The
Sixth and Fourteenth Amendments to the United States Constitution, as well as article I,
section 22 of the Washington Constitution, guarantee a criminal defendant the right to
trial by an impartial jury. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 42 L.
Ed. 2d 690 (1975); State v. Davis, 175 Wash. 2d 287, 312, 290 P.3d 43 (2012). The right to
trial by jury means a trial by an unbiased and unprejudiced jury. State v. Stackhouse, 90
Wash. App. 344, 350, 957 P.2d 218 (1998). Even one biased juror denies the accused a
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constitutional right to an impartial jury. State v. Irby, 187 Wash. App. 183, 192-93, 347
P.3d 1103 (2015), review denied, 184 Wash. 2d 1036, 379 P.3d 953 (2016). If the potential
juror demonstrates actual bias, the trial court must excuse the juror for cause. State v.
Fire, 100 Wash. App. 722, 726, 998 P.2d 362 (2000), reversed on other grounds by 145
Wash. 2d 152, 34 P.3d 1218 (2001).
Two Washington statutes address juror bias. RCW 4.44.170(2) defines actual
bias:
For the existence of a state of mind on the part of the juror in
reference to the action, or to either party, which satisfies the court that the
challenged person cannot try the issue impartially and without prejudice to
the substantial rights of the party challenging, and which is known in this
code as actual bias.
RCW 4.44.190 reads:
A challenge for actual bias may be taken for the cause mentioned in
RCW 4.44.170(2). But on the trial of such challenge, although it should
appear that the juror challenged has formed or expressed an opinion upon
what he or she may have heard or read, such opinion shall not of itself be
sufficient to sustain the challenge, but the court must be satisfied, from all
the circumstances, that the juror cannot disregard such opinion and try the
issue impartially.
Under the Washington statutes, even if a juror has a preconceived idea, such
opinion shall not disqualify the juror unless the court is satisfied, from all the
circumstances, that the juror in reference to the action or to either party cannot disregard
such opinion and try issues impartially. State v. Lawler, 194 Wash. App. 275, 281, 374
P.3d 278, review denied, 186 Wash. 2d 1020, 393 P.3d 1027 (2016). Stated differently, the
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juror will be excused for cause if his or her views would prevent or substantially impair
the performance of his or her duties as a juror in accordance with his or her instructions
and his or her oath. State v. Hughes, 106 Wash. 2d 176, 181, 721 P.2d 902 (1986).
“Actual bias” must be established by proof. Brady v. Fibreboard Corp., 71 Wn.
App. 280, 283, 857 P.2d 1094 (1993). A defendant must prove actual bias. State v.
Noltie, 116 Wash. 2d 831, 838, 809 P.2d 190 (1991). A defendant must show more than a
mere possibility that the juror was prejudiced to successfully challenge the trial court’s
decision on appeal. State v. Noltie, 116 Wash. 2d at 840; State v. Grenning, 142 Wash. App.
518, 540, 174 P.3d 706 (2008), aff’d, 169 Wash. 2d 47, 234 P.3d 169 (2010). A juror’s
“equivocal answers alone” do not justify removal for cause. State v. Noltie, 116 Wash. 2d at
839. The appropriate question is “whether a juror with preconceived ideas can set them
aside” and decide the case on an impartial basis. State v. Noltie, 116 Wash. 2d at 839.
Many Washington decisions address whether the trial court should have excused a
venire person for actual bias. We mention three of the decisions where a court answered
the question in the affirmative: State v. Irby, 187 Wash. App. at 192 (2015); State v.
Gonzales, 111 Wash. App. 276, 45 P.3d 205 (2002), and State v. Fire, 100 Wash. App. 722.
In State v. Irby, the potential juror in a murder prosecution remarked that she
might favor the prosecution because of her work in Child Protective Services. The
prosecutor then asked, “[w]ould that impact your ability to be a fair and impartial juror?
Do you think you could listen to both sides, listen to the whole story so to speak?” State
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v. Irby, 187 Wash. App. at 190. The potential juror responded, “I would like to say he is
guilty.” State v. Irby, 187 Wash. App. at 190. The court sat the juror absent objection, and
this court found manifest constitutional error requiring a reversal of all convictions.
In State v. Gonzales, 111 Wash. App. 276 (2002), the juror stated she, based on her
upbringing, deemed law enforcement officers honest and straightforward. According to
the juror, she would believe a law enforcement officer would tell the truth unless proven
otherwise and would encounter difficulty deciding against the testimony of an officer.
When told that the court might instruct her to presume the defendant as innocent, the
juror responded that she did not believe she could follow this presumption.
In State v. Fire, 100 Wash. App. 722 (2000), the challenged juror stated, “‘I
consider him [defendant charged with child molestation] a baby raper, and it should just
be severely punished.’” State v. Fire, 100 Wash. App. at 728. The juror added: “I’m very
opinionated when it comes to this kind of crime.” State v. Fire, 100 Wash. App. at 728.
The potential juror, who served on the panel, also admitted that his strong feelings about
this kind of case could affect his determination of guilt or innocence, in light of his belief
in the innocence of children and the relative lack of credibility of adults.
With some reluctance, we hold that Alexander Johnson fails to show actual bias in
juror two. Because juror two’s answer to the prosecution’s question suggests the juror
might not challenge the State’s evidence if Johnson presented no evidence, we wish the
juror would have been questioned further. Nevertheless, the juror, uneducated in the law,
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had not yet been instructed by the trial court as to the presumption of innocence or the
State’s burden of proving the crime beyond a reasonable doubt. Most potential jurors at
the outset of a trial trust that evidence presented will be truthful. Cross-examination of
witnesses and argument of counsel dispel this notion. The voir dire question and answer
tell us little about the mental state of the juror and whether he or she could be impartial to
the parties and the nature of the charges. The record lacks a showing that juror two could
not put aside any bias and fairly decide the case on the facts and the law.
In short, Johnson has failed to carry his burden of showing prejudice. Johnson
presents no decision directly on point. Juror two never stated she would believe officers’
testimony over other witness testimony. The juror never commented that the defendant
bore a presumption of guilt. The juror never mentioned a predisposition about the nature
of the charges.
Issue 2: Did trial defense counsel perform ineffectively by failing to seek to
remove juror two for cause?
Answer 2: No.
Alexander Johnson also claims his trial counsel was ineffective because he did not
challenge juror number two for bias or for cause. Since we hold that Alexander Johnson
shows no bias, we need not address this assignment of error. Johnson does not argue that
trial counsel should have exercised a preemptory challenge to remove juror two.
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Johnson Absence from Trial
Issue 3: Did the trial court err when failing to expressly ask Alexander Johnson,
before sentencing, as to his reason for being absent from a portion of the trial?
Answer 3: No, since the trial court afforded Johnson an opportunity to allocate
during sentencing.
Alexander Johnson contends the trial court failed to protect Johnson’s
constitutional right to be present at trial. Johnson assigns error to the trial court’s failure
to inquire whether he voluntarily waived his constitutional right. We disagree because
the trial court afforded Johnson an opportunity to explain his absence.
An accused possesses a fundamental constitutional right to be present during trial.
State v. Thomson, 123 Wash. 2d 877, 880, 872 P.2d 1097 (1994). The right derives from
Washington Constitution article I § 22, which provides: “the accused shall have the right
to appear and defend in person, or by counsel . . . [and] to meet the witnesses against him
face to face.” State v. Thomson, 123 Wash. 2d at 880 (alterations in original). The right to
be present accrues at every critical stage of the proceedings and includes trial testimony.
State v. Irby, 170 Wash. 2d 874, 880, 246 P.3d 796 (2011).
The accused may waive the right to be present during trial. State v. Garza, 150
Wash. 2d 360, 367, 77 P.3d 347 (2003); State v. Thomson, 123 Wash. 2d at 880. Any waiver
must be voluntary and knowing. State v. Thomson, 123 Wash. 2d at 880. Once trial has
begun in the defendant’s presence, a subsequent voluntary absence operates as an implied
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waiver, and the trial may continue without the defendant. State v. Garza, 150 Wash. 2d at
367.
In line with constitutional principles and case law, CrR 3.4 reads:
(a) When Necessary. The defendant shall be present at the
arraignment, at every stage of the trial including the empaneling of the jury
and the return of the verdict, and at the imposition of sentence, except as
otherwise provided by these rules, or as excused or excluded by the court
for good cause shown.
(b) Effect of Voluntary Absence. The defendant’s voluntary
absence after the trial has commenced in his or her presence shall not
prevent continuing the trial to and including the return of the verdict. A
corporation may appear by its lawyer for all purposes. In prosecutions for
offenses punishable by fine only, the court, with the written consent of the
defendant, may permit arraignment, plea, trial and imposition of sentence in
the defendant's absence.
(c) Defendant Not Present. If in any case the defendant is not
present when his or her personal attendance is necessary, the court may
order the clerk to issue a bench warrant for the defendant’s arrest, which
may be served as a warrant of arrest in other cases.
When the accused disappears during trial, Washington Supreme Court precedent
directs the trial court to engage in a three-step process: (1) inquire, in the defendant’s
absence, of the circumstances of his or her disappearance, (2) render a preliminary
finding of voluntariness, if justified, and (3), if and when the accused reappears, afford
the defendant an adequate opportunity to explain his absence before imposing sentence.
State v. Garza, 150 Wash. 2d at 367 (2003). The third prong of the analysis provides an
opportunity for the defendant to explain his or her disappearance and rebut the finding of
voluntary absence before the proceedings have been completed. State v. Thurlby, 184
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No. 34710-9-III
State v. Johnson
Wn.2d 618, 630, 359 P.3d 793 (2015); State v. Thomson, 123 Wash. 2d at 883.
Nevertheless, the third prong does not shift the burden to the State to prove the voluntary
nature of the absence. State v. Garza, 150 Wash. 2d at 368.
In performing the three-step analysis, the court indulges every reasonable
presumption against waiver. State v. Garza, 150 Wash. 2d at 367-68. This presumption
may conflict with the concept of an implied waiver of the right to be present if the
defendant voluntarily absents himself during trial.
We review a trial court’s decision regarding a criminal defendant’s voluntary
absence for abuse of discretion. State v. Garza, 150 Wash. 2d at 365-66. Alexander
Johnson attended the first day of trial. Johnson could not be found after a recess on the
second day of trial. Defense counsel called several of Johnson’s known phone numbers
to no avail. Following a deliberation on how to navigate the circumstances, including
consideration of CrR 3.4 and State v. Thurlby, the trial court authorized a bench warrant
for Johnson’s arrest. The trial court also commented that officers would search hospitals
and emergency rooms in an effort to determine if Johnson had an explanation for his
disappearance. The trial court waited an additional three hours for Alexander Johnson to
return. The next day, June 22, law enforcement located Johnson and arrested him
pursuant to his bench warrant. Upon his return, the trial court apprised Johnson of his
right to be absent, and also requested Johnson remain respectful, which he agreed to do.
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No. 34710-9-III
State v. Johnson
During sentencing, defense counsel advised the trial court that the State recently
charged Alexander Johnson with bail jumping. The State also informed the sentencing
court that Johnson’s absence from trial constituted a sentencing factor. The court advised
Johnson of his right to speak and afforded Johnson an opportunity to comment. Johnson
declined the invitation. The State believes Johnson offered no explanation at this
juncture at the behest of counsel and to prevent self-incrimination.
The totality of the circumstances confirm that Alexander Johnson voluntarily
waived his right to be present. Johnson informed counsel he was going to use the
restroom, and without warning, left the courthouse. Johnson failed to respond to or
answer any of the numbers he had provided to his attorney. The court waited hours for
Johnson to return, calling local hospitals and jails, presuming his absence was
involuntary. Law enforcement eventually found Johnson at a Spokane house.
We prefer that the trial court specifically mention to the accused of the right to
explain his absence, but we do not determine the specific mention to be constitutionally
required under these circumstances. The court allowed Johnson an opportunity to speak
on Johnson’s return to the court and during sentencing. He could have then complained
about the continuation of his trial in his absence and presented a valid reason for the
absence. His counsel could have also asked for a new trial if Johnson held a valid reason
for his absence.
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No. 34710-9-III
State v. Johnson
In State v. Thomson, 123 Wash. 2d 877 (1994), Christopher Thomson absented
himself from his trial on delivery of cocaine. He never reappeared during the trial but
presented himself at sentencing. The record does not show the trial court’s expressly
offering Thomson the opportunity to speak about his absence. Nevertheless, Thomas
apologized for his absence at trial without further explanation. The Washington Supreme
Court affirmed the trial court’s ruling that Thomson’s disappearance was voluntary.
We distinguish Alexander Johnson’s circumstances from the defendant’s situation
in State v. Garza, 150 Wash. 2d 360 (2003). Law enforcement arrested Benjamin Garza in
Snohomish County while in route to his trial in King County. Garza allegedly told
arresting officers that someone needed to alert King County of his absence, but no one
contacted the King County superior court judge, who proceeded with trial without any
real inquiry. The Supreme Court reversed Garza’s conviction.
Because we conclude the trial court committed no error, we do not address the
State’s argument that any error was harmless.
Pellet Gun Manufacturer Warning
Issue 4: Whether defense trial counsel performed ineffectively when failing to
object as hearsay to testimony of the pellet gun manufacturer’s warning?
Answer 4: No.
Alexander Johnson next asserts ineffective assistance of counsel in regards to his
trial defense counsel’s failure to object to Detective Randy Lesser’s reading to the jury of
22
No. 34710-9-III
State v. Johnson
the manufacturer’s warning on the pellet gun. Lesser found the warning on the pellet gun
manufacturer’s website. The State concedes the reading of the warning constituted
hearsay. The State argues that defense counsel did not object to use of the warning as
part of trial strategy.
To establish ineffective assistance of counsel, a defendant must satisfy a two-part
test: (1) that his or her counsel’s assistance was objectively unreasonable, and (2) that, as
a result of counsel’s deficient assistance, he or she suffered prejudice. Strickland v.
Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To
demonstrate the first prong, deficient performance, a reviewing court adjudges the
reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct. Strickland v. Washington, 466 U.S. at 690. This
court gives great deference to trial counsel’s performance and begins the analysis with a
strong presumption counsel performed effectively. State v. West, 185 Wash. App. 625,
638, 344 P.3d 1233 (2015).
Alexander Johnson argues his trial counsel’s failure to object to testimony
prejudiced him. In general, trial strategy and tactics cannot form the basis of a finding of
deficient performance. State v. Johnston, 143 Wash. App. 1, 16, 177 P.3d 1127 (2007).
The decision of when or whether to object to trial testimony is a classic example of trial
tactics. State v. Madison, 53 Wash. App. 754, 763, 770 P.2d 662 (1989). Only in
egregious circumstances, on testimony central to the State’s case, will the failure to
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No. 34710-9-III
State v. Johnson
object constitute incompetence of counsel justifying reversal. State v. Madison, 53 Wn.
App. at 763. A criminal defendant can rebut the presumption of reasonable performance
by demonstrating that no conceivable legitimate tactic explains counsel’s performance.
In re Personal Restraint of Caldellis, 187 Wash. 2d 127, 141, 385 P.3d 135 (2016); State v.
Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004).
The State astutely emphasizes instances when defense trial counsel highlighted the
manufacturer’s warning during counsel’s summation, such that the counsel incorporated
the language of the warnings into part of the trial strategy. Defense counsel referenced
the manufacturer’s warning to argue that the pellet gun was not deadly. Counsel also
used information from the warning in an attempt to prove that law enforcement
haphazardly investigated the Cornerstone Apartments the night of the shooting.
Based on trial counsel’s remarks during closing, we conclude that the failure to
object to the reading of the gun warning worked as a reasonable tactic. Therefore, we
need not determine whether any failure to object prejudiced Alexander Johnson.
Witness Testimony about Guilt
Issue 5: Did witness Melanie Kurtzhall or Eric Leggett deliver inadmissible
opinion testimony of the guilt of Alexander Johnson?
Answer 5: No.
24
No. 34710-9-III
State v. Johnson
Alexander Johnson contends that Melanie Kurtzhall and Eric Leggett testified to
opinions on Johnson’s guilt in violation of Johnson’s right to trial by jury. Johnson’s trial
counsel did not object to the testimony.
When the defendant asserts no objection during trial to the challenged evidence,
an appellate court reviews for manifest constitutional error. RAP 2.5(a)(3); State v.
Kirwin, 165 Wash. 2d 818, 823, 203 P.3d 1044 (2009). A defendant must identify the error
and demonstrate that the alleged improper opinion testimony resulted in actual prejudice
and had practical and identifiable consequences. State v. Kirkman, 159 Wash. 2d 918, 926-
27, 155 P.3d 125 (2007). Appellate courts will not approve a party’s failure to object at
trial that could identify error which the trial court might correct. State v. Kirkman, 159
Wash. 2d at 935. Failure to object deprives the trial court of this opportunity to prevent or
cure the error. State v. Kirkman, 159 Wash. 2d at 935.
No witness may offer testimony in the form of an opinion regarding the guilt or
veracity of the defendant because such testimony unfairly prejudices the defendant and
invades the exclusive province of the jury. State v. King, 167 Wash. 2d 324, 332, 219 P.3d
642 (2009). Improper opinions on guilt usually involve an assertion pertaining directly to
the defendant. City of Seattle v. Heatley, 70 Wash. App. 573, 577, 854 P.2d 658 (1993).
Testimony that does not directly comment on the defendant’s guilt or on the veracity of a
witness and otherwise assists the jury as based on inferences from the evidence does not
constitute improper opinion testimony. City of Seattle v. Heatley, 70 Wash. App. at 578.
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No. 34710-9-III
State v. Johnson
Testimony that is based on inferences from the evidence is not improper opinion
testimony. City of Seattle v. Heatley, 70 Wash. App. at 578. The fact that an opinion
supports a finding of guilt does not make the opinion improper. State v. Collins, 152 Wn.
App. 429, 436, 216 P.3d 463 (2009).
Admission of witness opinion testimony on an ultimate fact, without objection, is
not automatically reviewable as a “manifest” constitutional error. State v. Kirkman, 159
Wash. 2d at 936. An explicit or nearly explicit opinion on the defendant’s guilt can
constitute manifest error. State v. Kirkman, 159 Wash. 2d at 936.
We first review Melanie Kurtzhall’s testimony. After the shooting, Alexander
Johnson motioned his finger, as if shooting a gun, in Melanie Kurtzhall’s direction.
During testimony, Kurtzhall stated she knew that Johnson shot Leggett with the pellet
gun so she took Johnson’s motion as a direct threat that frightened her.
As part of his trial defense, Alexander Johnson claimed that the State could not
prove he fired the pellet gun. In turn, the State needed to prove beyond a reasonable
doubt that Johnson fired the weapon.
Alexander Johnson knew Melanie Kurtzhall as the manager of Cornerstone.
Melanie Kurtzhall knew of the threatening messages to Eric Leggett, and after the
shooting, assisted law enforcement with reviewing security camera footage. The jury
could infer that Johnson knew that Kurtzhall assisted Leggett and law enforcement.
Johnson’s threat toward Kurtzhall helped to establish that Johnson fired the pellet gun
26
No. 34710-9-III
State v. Johnson
toward Leggett, because Johnson made a similar shooting motion toward someone who
knew of the crime and assisted the victim and law enforcement. The jury could conclude
that Leggett shot the pellet gun, because he later sought to intimidate a witness with
simulated conduct.
We question whether Melanie Kurtzhall needed to testify that she believed Leggett
shot the pellet gun, but we do not consider admission of such testimony manifest
constitutional error. Kurtzhall did not directly declare Alexander Johnson guilty. The
jury would already have concluded that Kurtzhall considered Johnson the shooter without
Kurtzhall declaring her belief.
Alexander Johnson next challenges testimony of Eric Leggett that he considered
Johnson to be the shooter. Leggett based this conclusion on the threatening notes on his
window and Johnson’s vantage point from his window to Leggett’s apartment.
We deem State v. Blake, 172 Wash. App. 515, 298 P.3d 769 (2012) helpful. On his
appeal from a conviction for first degree murder, Jerome Blake argued, in part, that the
trial court erroneously allowed testimony of two witnesses who identified him as the
shooter without seeing him pull the trigger. Both witnesses testified to their conclusion
based on directions from which a flash originated and Blake’s positioning. Eric Leggett
based his testimony on similar physical evidence.
Issue 6: Did trial counsel perform ineffectively by failing to object to opinion
testimony of Melanie Kurtzhall or Eric Leggett?
27
No. 34710-9-III
State v. Johnson
Answer 6: No.
Alexander Johnson also asserts ineffective assistance of counsel for the failure to
object to Eric Leggett’s and Melanie Kurtzhall’s testimony. We disagree.
We have already concluded the testimony to be proper. Even if objectionable,
defense counsel may have tactically decided to not object as to not reemphasize the
comment to the jury and because the jury would have already concluded that Kurtzhall
and Leggett considered Johnson to be the shooter. The decision to object, or to refrain
from objecting, to inadmissible testimony is a tactical decision not to highlight the
evidence to the jury. State v. Kloepper, 179 Wash. App. 343, 355, 317 P.3d 1088 (2014).
The lack of an objection generally does not merit a finding of ineffective assistance of
counsel. State v. Kloepper, 179 Wash. App. at 355. Johnson fails to show that his counsel
performed deficiently.
Johnson as Unauthorized Tenant
Issue 7: Did the trial court commit reversible error by allowing Melanie Kurtzhall
to testify that Alexander Johnson was an unauthorized tenant?
Answer 7: No.
Finally, Alexander Johnson assigns error to the trial court’s overruling of his
objection to Melanie Kurtzhall’s testimony regarding Johnson’s status at Cornerstone as
an unauthorized guest. Johnson claims this inadmissible testimony painted him as a
28
No. 34710-9-III
State v. Johnson
scofflaw and raised a forbidden inference that one who breaks the law on one occasion is
likely to do it again on a different occasion. We agree.
An appellate court reviews a trial court’s ruling on an objection for abuse of
discretion. State v. Magers, 164 Wash. 2d 174, 181, 189 P.3d 126 (2008). Evidence that
tends to establish a party’s theory, or to qualify or disprove the testimony of an adversary,
is always relevant and admissible. State v. Harris, 97 Wash. App. 865, 872, 989 P.2d 553
(1999).
Alexander Johnson’s authorization, or lack thereof, to be at Cornerstone lacked
any relevance to the issues at trial. The State contends that Johnson’s application to
reside at Cornerstone established how Melanie Kurtzhall, a key witness for the State,
came to be familiar with Johnson. Nevertheless, Kurtzhall could have testified that
Johnson applied to become a tenant and she became acquainted with Johnson during the
application process, without Kurtzhall adding that the housing authority denied the
application. Johnson being denied the application did not allow Kurtzhall to better
identify Johnson or add to the evidence of guilt of Johnson.
We consider the admission of Melanie Kurtzhall’s testimony of Alexander
Johnson as being an unauthorized tenant as harmless error. Inadmissible evidence
requires reversal only if the error within reasonable probability, materially affected the
outcome. State v. Everybodytalksabout, 145 Wash. 2d 456, 468-69, 39 P.3d 294 (2002).
The error is harmless if the evidence is of minor significance compared to the overall
29
No. 34710-9-III
State v. Johnson
evidence as a whole. State v. Everybodytalksabout, 145 Wash. 2d at 469.
The State did not emphasize testimony of Alexander Johnson being an
unauthorized tenant. Overwhelming evidence, such as Johnson's motive, Johnson's
ownership of the pellet gun, the angle of the shots establishing that the shots came from
Johnson's apartment, and Johnson's open window, established guilt.
CONCLUSION
We affirm Alexander Johnson's harassment, second degree assault, malicious
harassment, and third degree malicious mischief convictions.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
:fhci-t:lo0 ~
iddoway, J. ~'U
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Pennell, A.CJ.
30