State Of Washington v. Joel Edward Payne ( 2020 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    THE STATE OF WASHINGTON,                       )           No. 79675-5-I
    )
    Respondent,             )           DIVISION ONE
    )
    v.                              )           UNPUBLISHED OPINION
    )
    JOEL EDWARD PAYNE,                             )
    )
    Appellant.              )
    )
    HAZELRIGG, J. — This is the second appeal arising from Joel E. Payne’s
    convictions for assault in the first degree while armed with a deadly weapon and
    malicious harassment stemming from the 2014 stabbing of Randelle Atkins. In
    Payne’s first appeal, we reversed and remanded because Payne was denied his
    right to counsel in post-trial proceedings and the court erred in calculating his
    offender score. On remand, the court appointed counsel for Payne and after
    conducting several hearings on the merits, denied his motion to set aside the
    verdict and resentenced Payne. Payne now appeals the court’s denial of his post-
    judgment motion challenging the verdict. Finding no error, we affirm.
    FACTS
    According to the testimony at Payne’s trial, Atkins went shopping alone at
    Southcenter Mall on October 10, 2014. After leaving the mall, he decided to stop
    at a small convenience store before returning to his vehicle. As he walked to the
    Citations and pinpoint citations are based on the Westlaw online version of the cited material.
    No. 79675-5-I/2
    store, Atkins noticed a man walking toward him wearing a mask that completely
    covered his face. Atkins and the man passed within a foot of each other.
    When he left the store, the same man, who was now wearing the mask on
    top of his head, approached Atkins. Atkins noticed that the man’s face was bruised
    and “kind of messed up.” The man, later identified as Payne, accused Atkins of
    previously stealing from him and began to loudly yell racial slurs. Atkins was using
    his telephone, ignored Payne, and attempted to walk past him. Payne followed
    him. Then, Atkins, who was holding his phone in one hand and a shopping bag in
    the other, felt that someone was about to touch him and turned around, raising his
    arms to try to create space. Payne stabbed Atkins in the chest and then fled on
    foot.
    Atkins did not immediately realize he had been stabbed, but when he turned
    and entered an AT&T store, people looked at him and screamed. He looked down
    and saw that he was bleeding heavily. Atkins dropped the items he was carrying
    and asked bystanders to call the police.         An ambulance arrived and medics
    inserted a chest tube into Atkins’ lung at the scene and transported him to the
    hospital.
    Shortly after, a Sears employee found Payne hiding in a storeroom. Payne
    explained that he was hiding from a man who was armed with a gun and asked
    the employee not to tell anyone he was there. The employee noticed bruises and
    cuts on Payne’s face. The employee notified a loss prevention officer, who called
    the police. Several officers gathered to search the storeroom. Following a brief
    physical confrontation, they arrested Payne. In a search incident to his arrest, they
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    No. 79675-5-I/3
    found two knives in his pocket. One of the knives appeared to have blood on the
    blade. Police also found a backpack in the storeroom containing various items,
    including a mask.
    Detectives searched the area outside the store where the stabbing occurred
    and found, among other things, a ring that Atkins had been wearing at the time of
    the incident. The detectives photographed, packaged, and placed the ring in
    evidence along with other items from the scene. Police interviewed Atkins at the
    hospital shortly after the incident, photographed his hands, and collected a
    Deoxyribonucleic acid (DNA) sample. A forensic scientist later analyzed the blood
    from the knife and determined that it matched the DNA from a sample taken from
    Atkins. The photographs did not depict any injuries to Atkins’ hands.
    About a week after the stabbing, Atkins called the lead detective and asked
    if his cell phone, eye glasses, and ring could be returned to him. Because the
    items had been photographed and he concluded that they did not have any
    evidentiary value, the detective returned the items to Atkins.
    Payne brought a pretrial motion to dismiss based on the State’s release of
    the ring to the victim before Payne had an opportunity to have it tested for the
    presence of DNA. Payne argued that the presence of his own DNA on the ring
    would have supported his claim of self-defense by refuting Atkins’ claim that he
    never hit him. The court denied the motion. In February 2016, a jury convicted
    Payne as charged of assault in the first degree and malicious harassment. The
    court imposed a standard range sentence.
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    No. 79675-5-I/4
    Payne appealed his convictions and sentence and claimed 1) the release
    of the ring to Atkins deprived him of the opportunity to test the ring and violated his
    right to due process; 2) the court violated his right to a public trial; 3) he was
    deprived of the right to counsel in post-trial proceedings; and 4) the trial court erred
    in calculating his offender score. We rejected Payne’s due process and public trial
    claims, but agreed that his offender score was miscalculated and that he was
    deprived of the right to counsel.       We reversed and remanded for post-trial
    proceedings with appointed counsel.
    On remand, Payne filed a motion for arrest of judgment and/or a new trial.
    He raised over thirty grounds for relief, including an alleged due process violation
    related to the failure to preserve the ring as evidence, insufficiency of the evidence,
    and numerous claims of ineffective assistance of counsel, prosecutorial
    misconduct, and trial court error. Over the course of two hearings, the court denied
    each of Payne’s motions. The court then resentenced Payne and again imposed
    a standard range sentence based on a reduced range. He timely appealed.
    ANALYSIS
    I.     Due Process
    Payne asks this court to revisit our decision in his prior appeal. Based on
    the law of the case doctrine, we decline to do so.
    In Payne’s first appeal, we concluded that, although the police initially
    placed the victim’s ring into evidence, the release of the ring to Atkins before trial
    did not violate Payne’s right to due process. See State v. Payne, No. 75503-0-I at
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    No. 79675-5-I/5
    slip   op.   at   3   (Wash.   Ct.   App.    March     26,   2018)    (unpublished),
    http://www.courts.wa.gov/opinions/pdf/755030.pdf. We assumed for purposes of
    our analysis that the ring was “potentially useful evidence”—meaning that it “‘could
    have been subjected to tests, the results of which might have exonerated the
    defendant.’” State v. Groth, 
    163 Wn. App. 548
    , 557, 
    261 P.3d 183
     (2011) (quoting
    Arizona v. Youngblood, 
    488 U.S. 51
    , 57, 
    109 S. Ct. 333
    , 
    102 L. Ed. 2d 281
     (1988).
    A police officer’s failure to preserve such evidence violates due process only if the
    defendant can show bad faith, an inquiry that turns on the officer’s knowledge of
    the exculpatory value of the evidence at the time it is lost or destroyed. See Groth,
    
    163 Wn. App. at 588
    ; State v. Burden, 
    104 Wn. App. 507
    , 512, 
    17 P.3d 1211
    (2001). We held that Payne failed to meet his burden to prove that the lead
    detective was aware of the ring’s exculpatory value and therefore acted in bad faith
    when he released it to its owner. Payne, slip op. at 3.
    Having determined a legal issue on appeal, we will not ordinarily reconsider
    the issue in a later appeal in the same litigation. “In its most common form, the
    law of the case doctrine stands for the proposition that once there is an appellate
    holding enunciating a principle of law, that holding will be followed in subsequent
    stages of the same litigation.” Roberson v. Perez, 
    156 Wn.2d 33
    , 41, 
    123 P.3d 844
     (2005). The doctrine promotes finality and efficiency. State v. Schwab, 
    163 Wn.2d 664
    , 672, 
    185 P.3d 1151
     (2008).
    The rule, codified by RAP 2.5(c)(2), is discretionary. Roberson, 
    156 Wn.2d at 42
    . The rule codifies “two historically recognized exceptions to the law of the
    case doctrine that operate independently.” 
    Id.
     “First, application of the doctrine
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    No. 79675-5-I/6
    may be avoided where the prior decision is clearly erroneous, and the erroneous
    decision would work a manifest injustice to one party.” 
    Id.
     “Second, application of
    the doctrine may also be avoided where there has been an intervening change in
    controlling precedent between trial and appeal.” 
    Id.
     There is also authority to
    suggest that we may reconsider a legal issue in a subsequent appeal if there is a
    “‘substantial change in the evidence at a second determination of the cause.’”
    Folsom v. County of Spokane, 
    111 Wn.2d 256
    , 263, 
    759 P.2d 1196
     (1988) (quoting
    Adamson v. Traylor, 
    66 Wn.2d 338
    , 339, 
    402 P.2d 499
     (1965).
    Neither party addresses this doctrine.1            Consequently Payne does not
    address the circumstances under which we may exercise our discretion to revisit
    a legal determination in a subsequent appeal. Nevertheless, at the superior court
    hearing on Payne’s post-trial motion, he argued that our decision did not foreclose
    renewal of his due process claim because of new evidence that was not before
    this court. Specifically, in support of his motion for a new trial on remand, Payne
    supplied evidence of the specific policies that governed the Tukwila Police
    Department’s collection, preservation, and release of evidence at the time of the
    crime. According to these policies, returning the ring to Atkins before the matter
    was adjudicated at trial required approval of the prosecuting attorney’s office and
    documentation. The State does not appear to dispute that the detective did not
    comply with these policies when he released the ring.
    1 The State asserts that either res judicata or collateral estoppel precludes Payne from
    raising the issue on appeal regarding the failure to preserve evidence. Because we apply the law
    of the case, we need not address the applicability of either of these “closely related” doctrines.
    Roberson, 
    156 Wn.2d at 41
    .
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    No. 79675-5-I/7
    The new evidence of the police department’s policies does not warrant
    reconsideration of Payne’s claim. In rejecting his claim in the first appeal, we noted
    Payne’s failure to demonstrate a violation of a particular regulation or explicit
    policy.      But as our decision makes clear, this fact was not critical to our
    determination. As we explicitly observed, a loss or destruction of evidence that is
    in violation of clear policy, does not, of itself, constitute bad faith. Payne, slip op.
    at 3; See Groth, 
    163 Wn. App. at 559
    .
    The basis for our decision was the lack of evidence in the record of bad
    faith. It is well established that as to potentially useful evidence, we apply the
    analysis of the United States Supreme Court, which requires a defendant to show
    that the failure to preserve evidence was more than merely negligent and provides
    that the presence or absence of bad faith hinges on “knowledge of the [apparent]
    exculpatory value of the evidence.” Youngblood, 
    488 U.S. 56
    , n.* (alterations in
    original).    For example, Youngblood involved the police’s handling of a rape
    victim’s clothing. Id. at 53-54. Semen stains on the clothing could have possibly
    exonerated the defendant had the clothes been tested sooner or been refrigerated.
    Id. at 57-58. However, the Court held that the police actions did not amount to bad
    faith because failure to perform tests was, at worst, negligent. Id. at 58. In other
    words, the police’s failure to realize the potential usefulness of the evidence before
    it was destroyed is insufficient to show bad faith.
    Payne challenges our determination that the evidence does not show that
    the detective was aware of the potentially exculpatory value of the evidence when
    he returned it to the victim. But his arguments in this regard are essentially the
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    No. 79675-5-I/8
    same as those we considered and rejected when we resolved his first appeal.
    Having decided Payne’s due process claim, we see no clear error in our previous
    decision which might indicate injustice and no reason to depart from our reasoning.
    We therefore decline to revisit his claim.
    II.    Sufficiency of the Evidence
    Payne challenges the sufficiency of the evidence to support his conviction
    of assault in the first degree.
    To resolve such a challenge, we view the evidence in the light most
    favorable to the State and decide whether any rational trier of fact could have found
    the elements of the crime beyond a reasonable doubt. State v. Salinas, 
    119 Wn.2d 192
    , 201, 
    829 P.2d 1068
     (1992). We draw all reasonable inferences from the
    evidence in favor of the State and interpret the evidence most strongly against the
    defendant. 
    Id.
     We deem circumstantial and direct evidence equally reliable. State
    v. Thomas, 
    150 Wn.2d 821
    , 874, 
    83 P.3d 970
     (2004). Nevertheless, inferences
    based on circumstantial evidence must be reasonable and not based on
    speculation. State v. Vasquez, 
    178 Wn.2d 1
    , 16, 
    309 P.3d 318
     (2013). The trier
    of fact, not the reviewing court, resolves credibility determinations.      State v.
    Camarillo, 
    115 Wn.2d 60
    , 71, 
    794 P.2d 850
     (1990).
    First degree assault is an alternative means crime and here, the State
    charged Payne with two alternative means. As charged, the State was required to
    prove that, “with intent to inflict great bodily harm,” Payne either (1) assaulted
    Atkins with a “deadly weapon or by a force or means likely to produce great bodily
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    No. 79675-5-I/9
    harm or death;” or (2) committed an assault that “resulted in the infliction of great
    bodily harm.” RCW 9A.36.011(1)(a), (c). Great bodily harm is defined as “bodily
    injury which creates a probability of death, or which causes significant serious
    permanent disfigurement, or which causes a significant permanent loss or
    impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(c).
    When the State charges alternative means, the jury must unanimously agree that
    the crime occurred but need not be unanimous as to which of the alternative means
    has been proved so long as sufficient evidence supports each alternative. State
    v. Woodlyn, 
    188 Wn.2d 157
    , 164, 
    392 P.3d 1062
     (2017).
    Payne claims the State failed to prove that he acted with intent to inflict great
    bodily harm. He points out that the stabbing happened quickly. And he claims
    that evidence of a single strike with a knife is not indicative of intent to cause great
    bodily harm.
    In determining whether the evidence was sufficient to prove the requisite
    intent, the “jury may consider the manner in which the defendant exerted the force
    and the nature of the victim’s injuries to the extent that it reflects the amount or
    degree of force necessary to cause the injury.” State v. Pierre, 
    108 Wn. App. 378
    ,
    385, 
    31 P.3d 1207
     (2001). While specific intent may not be presumed, the trier of
    fact may infer it “as a logical probability from all the facts and circumstances.” State
    v. Wilson, 
    125 Wn.2d 212
    , 217, 
    883 P.2d 320
     (1994). All details of the case may
    indicate intent, including the manner and act of inflicting the wound, and also the
    nature of the relationship and any prior threats. State v. Ferreira, 
    69 Wn. App. 465
    ,
    468-69, 
    850 P.2d 541
     (1993).
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    No. 79675-5-I/10
    We have previously held that stabbing a person in the chest falls within the
    “statutory standard of conduct ‘likely to produce great bodily harm or death.’” State
    v. Langford, 
    67 Wn. App. 572
    , 587, 
    837 P.2d 1037
     (1992) (quoting RCW
    9A.36.011(1)(a)).    We have also held that a rational jury could find that the
    defendant acted with intent to cause great bodily harm when he stabbed several
    people “in the back, chest or stomach,” and one of those people required multiple
    surgeries to repair the damage. State v. Huddleston, 
    80 Wn. App. 916
    , 922, 
    912 P.2d 1068
     (1996).
    Likewise here, the evidence is sufficient to permit an inference of the intent
    to inflict great bodily harm. The State’s evidence showed that after yelling racial
    epithets and accusing Atkins of robbing him, Payne plunged a knife into Atkins’
    chest with enough force to penetrate the chest cavity, narrowly missing his heart.
    His conduct was indicative of intent to cause death or serious permanent injury.
    While the knife missed Atkins’ heart, he received prompt treatment, and he
    apparently did not suffer a permanent impairment, this outcome was not inevitable.
    Atkins’ survival and recovery does not negate Payne’s apparent intent.
    Payne also challenges the sufficiency of the evidence to support one of the
    charged alternative means of assault. Specifically, he challenges the sufficiency
    of the evidence to establish that he inflicted great bodily harm upon Atkins. He
    argues that the only injury Atkins sustained, a collapsed lung, was treatable and
    did not create a “probability of death.” RCW 9A.04.110(4)(c). He further argues
    that the injuries the treating physician characterized as potentially fatal or likely to
    10
    No. 79675-5-I/11
    lead to permanent impairment, were merely injuries Atkins might have suffered
    had the knife struck Atkins in a slightly different location.
    But viewing the evidence in the light most favorable to the State, as we
    must, we conclude it was sufficient to support the jury’s determination that the
    assault resulted in great bodily harm. The treating physician testified that Atkins
    suffered a stab wound to the chest that was six centimeters deep, punctured his
    lung, and placed him at risk for losing a lung. The injury created a significant risk
    of hemorrhage and “massive” blood loss.              The physician explained that a
    penetrative injury that endangers the heart and/or significant blood vessels is a
    potentially fatal injury. He also testified that the critical factor in penetrative injuries
    is the depth of penetration, and in this case, the depth was great enough to cause
    serious injury. He specifically agreed that a stab wound to the chest area creates
    a probability of death. The logical inference from all the evidence is that the injury
    inflicted here, a deep stab wound in the chest cavity, resulted in great bodily harm
    by creating a probability of death. Payne’s challenge to the sufficiency of the
    evidence fails.
    III.   Interest on Legal Financial Obligations
    The sentencing court imposed legal financial obligations consisting of a
    $500 victim penalty assessment and restitution.             Under RCW 10.82.090(1),
    restitution bears interest that accrues from the date of the judgment but, as of June
    7, 2018, other legal financial obligations do not accrue interest.
    11
    No. 79675-5-I/12
    Payne claims that his judgment and sentence requires interest accrual on
    all legal financial obligations imposed and therefore must be amended.              We
    disagree.    Payne’s judgment and sentence provides that “[f]inancial legal
    obligations shall bear interest pursuant to RCW 10.92.090.”            The court also
    checked a box that provides, “[i]nterest is waived except with respect to restitution.”
    Reading the language of Payne’s judgment and sentence in conjunction with the
    statute, it is clear that interest will accrue only on the restitution he was ordered to
    pay.
    Affirmed.
    WE CONCUR:
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