State Of Washington v. Larry Ayo Peters, Jr. ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
April 21, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52585-2-II
Respondent,
v.
LARRY AYO PETERS, JR., UNPUBLISHED OPINION
Appellant.
CRUSER, J. — Larry Ayo Peters Jr. appeals from his jury trial convictions for first degree
kidnapping, felony harassment, and second degree assault of his former girlfriend, MT, and the
deadly weapon sentencing enhancements related to each conviction. He argues that (1) the State’s
late disclosure of impeachment evidence amounted to a Brady1 violation that violated his right to
a fair trial and (2) the deadly weapon sentencing enhancements violated his right to a unanimous
verdict because the jury was not instructed that it had to be unanimous as to which weapon he was
armed with when it made the deadly weapon special verdict findings. Because Peters fails to show
that the late-disclosed evidence was material and the State elected in closing argument what
1
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
No. 52585-2-II
weapon it was relying on to prove the deadly weapon sentencing enhancements, we affirm the
conviction and deadly weapon sentencing enhancements.
FACTS
I. BACKGROUND
On January 12, 2017, at about 12:30 PM, officers from the Fife Police Department
responded to a 911 call from MT. MT reported that Peters had lured her to a motel room the night
before with a false text message that she thought came from a friend and had attacked her. She
told the responding officers that Peters had shocked her with a “stun gun” in the side of her neck
and stomach, sexually assaulted her, and threatened to kill her. 5 Verbatim Report of Proceedings
(VRP) at 462.
Officers located Peters at the motel. When the officers took Peters into custody, they found
and confiscated two cell phones. Peters was transported to the hospital because he was
experiencing health issues.
At the hospital, Detective Sergeant Thomas Thompson and Detective Jeff Nolta
interviewed Peters. Nolta later downloaded information from the two cell phones and produced
reports about their contents, which include text messages to and from MT.
II. PROCEDURE
A. CHARGES
The State charged Peters by amended information with first degree kidnapping, first degree
rape, felony harassment, second degree assault, and violation of a domestic violence court order.
The State also alleged that Peters committed each of these offenses while armed with a deadly
weapon. The case proceeded to a jury trial.
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No. 52585-2-II
B. TRIAL
Nolta, Thompson, Captain Aaron Gardner, MT, and the sexual assault nurse examiner
testified for the State. Peters did not present any evidence.
1. TESTIMONY
a. NOLTA’S TESTIMONY
Nolta testified about his and Thompson’s interview with Peters in the hospital. Nolta also
testified about his forensic examination of the two cell phones that Peters had been carrying.
b. THOMPSON’S TESTIMONY
Thompson testified about contacting MT at about 12:30 PM following her 911 call on
January 12. When he arrived, MT described what had happened; her description was largely the
same as her trial testimony. Thompson observed that MT had injuries to her neck and stomach.
After MT was taken to the hospital, Thompson went to the motel, where other officers were
taking Peters into custody. Thompson’s testimony about what happened at the hospital was the
same as Nolta’s, but Thompson provided more detail about the interview.
c. GARDNER’S TESTIMONY
Gardner testified that he contacted Peters by phone at the motel and asked him to step out
of the room to talk to the officers outside of his room. Peters eventually left the room and was
arrested.
d. MT’S TESTIMONY
MT testified that Peters lured her to the motel room by sending her a text purporting to be
from another friend and inviting her to the motel on the evening of January 11. When she arrived,
she was attacked by a person wearing black clothing and a black mask, whom she later recognized
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No. 52585-2-II
as Peters. Peters shocked her with a stun gun to the side of her neck, and she fell to the floor.
Peters then used the stun gun on her stomach.
MT testified that Peters took away her cell phone and then told her that he wanted to have
sex with her “one last time” and ordered her to remove her clothing. 1 VRP (Mar. 12, 2018) at
119. Peters threatened to kill her and then himself and swung a machete within inches of her head.
MT complied with Peters’s demands because she feared for her life and thought Peters would kill
her with the machete if she did not comply. After having sex, Peters fell asleep, but MT did not
attempt to escape because she feared she would wake him and make him angry. MT eventually
managed to escape and contact law enforcement.
e. FORENSIC NURSE EXAMINER’S TESTIMONY
Tasha Cushman, the forensic nurse examiner who examined MT, testified that MT told her
(Cushman) that she (MT) had cooperated with Peters because she was afraid for her life and
thought that if she cooperated she might be able to try to escape. MT described being stunned,
and Cushman saw stun gun marks on the left side of MT’s neck and abdomen. MT also described
other weapons, such as a machete, “a big long sword thing,” and “zip tied handcuffs.” 6 VRP at
594. MT further reported that Peters had threatened to kill her and then himself and to kill her if
she reported the incident.
2. JURY INSTRUCTIONS
After the parties rested, the trial court instructed the jury on the substantive offenses and
the deadly weapon sentencing enhancement special verdict forms. The trial court did not instruct
the jury that it had to be unanimous as to which weapon was the basis of any deadly weapon
sentencing enhancement special verdict, nor did Peters request such an instruction.
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No. 52585-2-II
3. CLOSING ARGUMENTS AND VERDICT
During its closing argument, the State discussed the deadly weapon sentencing
enhancement special verdicts. The State argued that the deadly weapon sentencing enhancement
special verdicts were based solely on Peters having been armed with the machete.2
The jury found Peters guilty of first degree kidnapping, harassment, and second degree
assault.3 It also found that Peters was armed with a deadly weapon when he committed each of
these offenses.
C. MOTION TO DISMISS
After the verdict, but before sentencing, Peters moved to dismiss the charges under CrR
8.3(b), based on governmental misconduct. Peters alleged that the State had violated Brady by
failing to disclose potential impeachment evidence related to Nolta that had existed prior to Nolta’s
March 12 testimony.
Peters stated that on May 15, well after Nolta testified, the State disclosed a February 20,
2018 disciplinary report concluding that in a different case Nolta had “committed a series of acts
which had potential impeachment value to the defendant in this case.” Clerk’s Papers (CP) at 226.
Peters alleged that the report disclosed that Nolta had been “found to have improperly accessed
and reviewed jail phone calls made by a defendant [in another case], without a legitimate
investigative purpose, in violation of [Fife Police] Department rules.” Id. Peters further alleged
that “Nolta also listened to at least one privileged phone call between a defendant [in another case]
2
We describe and discuss this part of the State’s closing argument in more detail in the analysis.
3
The jury also found Peters guilty of violation of a no-contact order, but the trial court later vacated
that conviction and dismissed the charge. The jury acquitted Peters on the first degree rape charge.
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No. 52585-2-II
and an attorney’s office without disclosing that he had done so,” that Nolta had “allowed others to
use his secure login and, in the past, had listened to privileged attorney client phone calls in other
cases.” Id. Peters asserted that Gardner, who had also testified at trial, signed the disciplinary
report and that Thompson was involved in the investigation. The trial court denied the motion to
dismiss.
Peters appeals his convictions and the deadly weapon sentencing enhancements.
ANALYSIS
Peters argues that (1) he is entitled to a new trial because the State’s failure to disclose
Detective Nolta’s disciplinary action was a Brady violation that deprived him of a fair trial and (2)
we should reverse the deadly weapon enhancements because the trial court failed to instruct the
jury that its verdict on the special verdicts had to be unanimous as to which weapon Peters was
armed with at the time of each offense. These arguments fail.
I. BRADY ISSUE
Peters argues that the State’s failure to disclose Nolta’s disciplinary action was a Brady
violation and that this violation undermines confidence in the verdict and deprived him of a fair
trial.4 We disagree.
To establish a Brady violation, a defendant must demonstrate the existence of each of three
elements: “(1) ‘[t]he evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching,’ (2) ‘th[e] evidence must have been suppressed by the
4
Peters does not argue that the trial court erred when it denied his CrR 8.3(b) motion to dismiss
for governmental misconduct. He argues that the Brady violation undermines only confidence in
the verdict and deprived him of a fair trial.
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No. 52585-2-II
State, either willfully or inadvertently,’ and (3) the evidence must be material.” State v. Davila,
184 Wn.2d 55, 69, 357 P.3d 636 (2015) (alterations in original) (quoting Strickler v. Greene, 527
U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)).
“Evidence is material under Brady ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.’”
Id. at 73 (internal quotation marks omitted) (quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115
S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). A reasonable probability exists if the suppression of the
evidence “‘undermines confidence in the outcome of the trial.’” Id. (internal quotation marks
omitted) (quoting Kyles, 514 U.S. at 434). Whether the evidence in question is material is a legal
issue that we review de novo. Id. at 74-75. The undisclosed evidence here was not material
because there is no reasonable probability that the result of the proceeding would have been
different if this information had been timely disclosed.
As to Nolta’s testimony about his contact with Peters and Peters’s statements while at the
hospital, that testimony was merely cumulative because Detective Sergeant Thompson testified to
the same facts. Because this same evidence was presented by a second witness whose credibility
was not implicated by the late-disclosed evidence,5 we hold that the late-disclosed evidence does
not undermine confidence in the verdict in this respect.
5
Peters appears to suggest that the late disclosure about the investigation was also a Brady
violation with respect to Thompson and Captain Gardner because they were involved in the
investigation of Nolta. But Peters does not explain how mere involvement in an investigation of
another officer provided any exculpatory or impeachment evidence. Accordingly, there is no
Brady violation in respect to Thompson or Gardner.
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No. 52585-2-II
As to Nolta’s testimony about the cell phone data, defense counsel used that information
in closing argument to raise issues about MT’s credibility. Because Peters himself used this
testimony to support his closing argument, Peters does not show how impeaching the source of
that evidence would have changed the result of the proceeding.
Because Nolta’s evidence was either cumulative or was helpful to Peters, we hold that
Peters does not show materiality. Thus, his Brady claim fails.
II. DEADLY WEAPON SENTENCING ENHANCEMENTS
Peters next argues that we should reverse the deadly weapon sentencing enhancements for
each offense because the trial court did not instruct the jury that it had to be unanimous as to which
weapon, the stun gun or the machete, was the basis for the enhancements. He contends that this is
a multiple acts issue and that the State’s attempts to elect were ambiguous.
Article I, section 21 of the Washington State Constitution gives criminal defendants the
right to a unanimous jury verdict. State v. Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017).
When the State presents evidence of multiple acts that could form the basis of the crime charged,
either the State must elect to rely on just one of the acts or the jury must be instructed to reach a
unanimous verdict based on the specific act that supports a finding of guilt. State v. Coleman, 159
Wn.2d 509, 511, 150 P.3d 1126 (2007). Here, even presuming, but not deciding, that the unanimity
rule applies to deadly weapon sentencing enhancements, there was no unanimity issue because the
State clearly elected the type of weapon used in relation to each of the special verdicts.
When addressing the special verdict for the deadly weapon sentencing enhancement for
the first degree kidnapping charge, the State argued,
That room was not a big room. It was a standard two-queen room in any motel
we’ve ever been in, and you can see it. You can see those pictures, and she told
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No. 52585-2-II
you where they were arrayed. The machete at one point was over by the chair,
which was between the two beds. She told you the other items were all laid out for
him on that table or desk thing that was underneath the TV. They were very much
available to him, and that room was not a giant room. There wasn’t a ton of walking
space in there, so yeah, they’re readily accessible to him for offensive or defensive,
if she decided to fight back. He had pepper spray, he had gel spray, he had plenty
of things to utilize, right?
But really the question -- I should clarify. The Special Verdict Form is with
regard to the machete, so whether the machete was readily accessible, okay.
Perhaps also the [stun gun], but I think more -- you’re on firmer ground, I would
submit and ask you to rely on the machete, okay.
....
. . . There was a connection between the machete and the defendant, and he
rented the room, right? It’s his room. It was in his room. There’s a connection.
And there was a connection between the weapon and the crime. Was there a
connection between this machete and the kidnapping? Yeah. One of the reasons
she was restrained in the room, one of the reasons she didn’t flee when that door
was opened is because she was afraid she was going to die. One of the reasons, one
of the ways he kept her under his control that night was with this machete. So yes,
there was a connection between the machete and the crime.
7 VRP at 682-83.
Although the State mentioned other weapons, this argument clearly directed the jury to
consider only the machete as the basis for the deadly weapon enhancement for the kidnapping
charge.
When addressing the special verdict for the deadly weapon sentencing enhancement on
the felony harassment charge, the State argued, “Was he armed with a deadly weapon? Again,
this pertains to Instruction 34[6] regarding the machete. Yes, he was physically holding it while
he threatened to murder her.” Id. at 692. As Peters himself concedes, this was a clear election of
6
Jury instruction 34 instructed the jury on the deadly weapon special verdict and defined the term
deadly weapon for this purpose. The State was distinguishing this definition of deadly from the
definition of deadly weapon that applied to the substantive offenses, jury instruction 16.
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No. 52585-2-II
the machete as the only basis for the deadly weapon enhancement for the felony harassment
charge.
When addressing the special verdict for the deadly weapon sentencing enhancement on the
second degree assault charge, the State argued,
And was he armed with a deadly weapon at the time? Remember, this
regarding the machete, so the question is, so you may -- I don’t think you should,
but you may determine that when he [stunned] her at the door, that the [stun gun]
was a deadly weapon, but he was not armed with the machete, in which case you
could return a guilty on [the verdict form for the crime of second degree assault]
and answer [the deadly weapon special verdict for related to the second degree
assault charge] as a no. But remember what Instruction 34 tells us about “armed.”
Armed means readily available. It doesn’t mean in his hand. And what did we
have? We had a room where he had staged it and set it up, weaponry laid out, and
the machete was near enough that he was dragging her to it. So I would submit to
you, yes, you find, yes, he was armed with a deadly weapon, with the machete at
the time.
Id. at 696-97.
The State’s argument clearly distinguished between what weapon the jury was to consider
when considering the offense from the weapon it was to consider when considering the deadly
weapon special verdict. In fact, the State went as far as to remind the jury that it must answer “no”
to the deadly weapon special verdict if it was relying on the stun gun.
This argument, as a whole, clearly demonstrates that the State elected to rely upon the
machete as the deadly weapon in relation to each of the charges, not the stun gun or the other
weapons in the room. Because the State clearly elected to rely on the machete, Peters’s unanimity
argument fails.7
7
Because we hold that the State elected by asking the jury to consider only whether Peters was
armed with the machete, we do not address Peters’s assertion that the evidence was insufficient to
establish that the stun gun was a deadly weapon for purposes of the sentencing enhancement.
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No. 52585-2-II
We hold that (1) Peters’s Brady argument fails because Peters does not establish materiality
and (2) Peters’s unanimity argument fails because the State clearly elected which weapon it was
relying on for the deadly weapons sentencing enhancement verdicts during closing argument.
Accordingly, we affirm the convictions and the deadly weapon sentencing enhancements.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J.
We concur:
MAXA, P.J.
GLASGOW, J.
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