State Of Washington, Resp. v. David C. Hindal, App. ( 2014 )


Menu:
  •                                                                 S't'Sf i S^l'
    jF.^r
    ZOliiSEP 15 RH10- 2«
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    No. 70701-9-1
    Respondent,
    DIVISION ONE
    v.
    DAVID C. HINDAL,                                 UNPUBLISHED OPINION
    Appellant.                  FILED: September 15, 2014
    Becker, J. — The mere fact that a jury sees a defendant wearing shackles
    does not mandate a mistrial. Appellant does not challenge the trial court's initial
    decision to order that he wear an Oregon boot. It was at his own request that he
    was placed in shackles. He has not demonstrated that the trial court abused its
    discretion by denying the motion for mistrial.
    Appellant David Hindal was charged with one count of residential burglary.
    Hindal was tried to a jury from May 7, 2013, to May 10, 2013.
    On May 6, 2013, Hindal did not object when jail personnel explained that it
    was their practice to bring criminal defendants to the courtroom in handcuffs and
    an "Oregon boot" and remove the handcuffs before the jury arrives.
    On May 8, 2013, Hindal asked to be placed in ankle chains because the
    Oregon boot was causing him considerable discomfort. It is undisputed that the
    next day, he was wearing ankle shackles.
    No. 70701-9-1/2
    On May 9, 2013, Hindal testified in the defense case. Defense counsel
    became aware that Hindal's ankle shackles were visible to the jury and moved
    for a mistrial.
    The court denied the motion:
    The record reflects that on the first day the trial was to start, or
    maybe it was the second day, before we brought the jury in, that
    Mr. Hindal refused to dress in civilian clothing, in fact at one point
    he came down in a smock and then later in jail clothes. The Court
    indicated to Mr. Hindal that it would be his choice as to whether to
    dress in civilian clothes, but it was in his interest to dress in civilian
    clothes when the jury was present, and the Court made special
    note of the fact that Mr. Hindal was dressed in jail sandals when he
    came down. He did thereafter dress in civilian clothes, except that
    he has apparently chosen to continue to wear jail sandals, so if the
    jury's been able to see his ankle bracelet, that would be a reason
    why. He's also made outbursts, despite the Court warning him that
    this would be unfavorably - could be unfavorably received by the
    jury for him to make outbursts in court. He has made outbursts in
    court in the presence of at least juror, and I think the entire jury, that
    he is in custody, that he's been in custody. So if they have seen
    the ankle bracelet, they haven't seen anything that - other than
    what Mr. Hindal has chosen voluntarily to provide them by way of
    information. The Court denies the motion for mistrial.
    Hindal was convicted as charged on May 10, 2013.
    Hindal argues that the trial court abused its discretion in denying his
    motion for mistrial "because the court underestimated, as a matter of law, the
    seriousness of the appearance of an accused in shackles at trial."
    We review the denial of a motion for mistrial for an abuse of discretion.
    State v. Hopson, 
    113 Wash. 2d 273
    , 284, 
    778 P.2d 1014
    (1989). The question is
    whether the irregularity, viewed against the backdrop of all the evidence, so
    prejudiced the jury that the defendant was denied his right to a fair trial. State v.
    Escalona, 
    49 Wash. App. 251
    , 255, 
    742 P.2d 190
    (1987). To determine whether
    No. 70701-9-1/3
    the irregularity so influenced the jury, a court considers (1) the seriousness of the
    claimed irregularity, (2) whether it was cumulative of other properly admitted
    evidence, and (3) whether it could be cured by an instruction to disregard the
    irregularity. 
    Escalona. 49 Wash. App. at 255
    .
    The claimed irregularity is that the jurors were able to see that Hindal was
    wearing ankle shackles. Hindal did not request a curative instruction. He argues
    that the irregularity was so serious that an instruction could not have cured the
    prejudice.
    Shackling undermines the presumption of innocence. Shackles indicate to
    a jury that the defendant is dangerous. See State v. Finch. 
    137 Wash. 2d 792
    , 844-
    46, 
    975 P.2d 967
    , cert denied, 
    528 U.S. 922
    (1999). An unjustified decision to
    shackle a defendant is presumptively prejudicial. State v. Clark, 
    143 Wash. 2d 731
    ,
    774, 
    24 P.3d 1006
    . cert, denied. 
    534 U.S. 1000
    (2001). However, Hindal does
    not assign error to the court's initial decision that it would be appropriate to have
    him wear an Oregon boot in the courtroom. Thus, the serious threshold question
    of whether it was appropriate to restrain Hindal's freedom of movement is not
    before us.
    The mere fact that a jury sees an inmate wearing shackles does not
    mandate reversal. State v. Rodriguez, 
    146 Wash. 2d 260
    , 270, 
    45 P.3d 541
    (2002). If the shackles were visible, their effect was cumulative of the effect of
    Hindal's appearance in jail garb, which revealed that he was in custody. While
    shackles communicate dangerousness more strongly, the decision to wear ankle
    shackles—like the decision to wear jail garb—was Hindal's. He does not explain
    No. 70701-9-1/4
    why he should now be allowed to second-guess that decision. See 
    Rodriguez, 146 Wash. 2d at 271
    . Hindal has not demonstrated that the trial court abused its
    discretion by denying the motion for a mistrial.
    Even assuming the decision to allow Hindal to appear in shackles was
    unjustified, a claim of unconstitutional shackling is subject to harmless error
    analysis. 
    Clark, 143 Wash. 2d at 775
    . Any error here was harmless. The evidence
    that Hindal committed residential burglary was so overwhelming that no rational
    conclusion other than guilt could be reached. See 
    Clark, 143 Wash. 2d at 775
    -77.
    Hindal next argues that resentencing is required. On June 28, 2013,
    Hindal was sentenced to 63 months in prison. The trial court included a number
    of foreign convictions in calculating his offender score. Hindal did not object to
    his offender score at the sentencing hearing. Hindal contends that the trial court
    failed to determine if several California and Florida burglary convictions were
    sufficiently comparable to Washington crimes to be used in the calculation of his
    offender score. The State concedes that remand for resentencing is required.
    We accept the State's concession in light of State v. Lucero, 
    168 Wash. 2d 785
    , 
    230 P.3d 165
    (2010) (a defendant does not waive his right to a comparability analysis
    when he fails to object to an offender score based on foreign convictions).
    Hindal filed a pro se statement of additional grounds for review pursuant to
    RAP 10.10. He claims the trial court impermissibly withheld information from the
    jury when it excluded testimony by a police officer that Hindal stated he was
    hearing voices on the night of the alleged burglary. He claims that his attorney
    did not thoroughly pursue a diminished capacity defense. He also claims his
    No. 70701-9-1/5
    Sixth Amendment rights were violated when he was prohibited from calling Jose
    Mendoza as a witness. Mendoza is the man who called 9-1-1 when he saw two
    men he could not identify in his neighbor's yard. None of these are grounds for
    further review.
    We affirm the conviction and remand for resentencing.
    WE CONCUR:
    .^        <^~^-\.Af