State Of Washington v. Tanar Mckenzie ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
No. 79357-8-I
Respondent,
) DIVISION ONE
v. )
)
TANAR McKENZIE, ) UNPUBLISHED OPINION
Appellant. ) FILED: March 9, 2020
__________________________________________________________________________________)
SMITH, J. —The State charged Tanar McKenzie with second degree assault with
a deadly weapon after he struck his mother with a cane and allegedly threatened her
with the 13-inch knife that was sheathed inside its handle. At trial, the State introduced
testimony by two officers who arrested McKenzie. The testimony included improper
ER 404(b) evidence of past criminal conduct. McKenzie moved for a mistrial, which the
trial court denied. Because the irregularities regarding the testimony were not serious,
there was not a substantial likelihood that the irregularities affected the jury’s verdict.
Thus, we affirm the conviction. However, because McKenzie previously had a DNA
(deoxyribonucleic acid) sample collected, the trial court erred in imposing the $100 DNA
fee. Therefore, we remand for the trial court to strike the fee.
FACTS
McKenzie suffered a compound fracture of his leg in 2017, which required him to
use a walker and then a cane. His mother, Laura Cooper, with whom he lived, took off
a month of work to ‘help take care of him.” Cooper testified that at the time, McKenzie
“became difficult” to care for and “became abusive.” Cooper explained that on one
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occasion, Mckenzie “kind of hit [her] on [her] legs” with his walker. Further, she
recounted another experience where McKenzie “grabbed a knife off the counter [and]
was going to swing it at [her].”
Cooper testified that on October 27, 2017, Mckenzie was sleeping on the couch
and ‘yell[ed]” at her to come into their living room. When she told Mckenzie to “give
[her] a moment,” Mckenzie came “storming in” using his cane and asked, “[B]itch, didn’t
you hear me calling you[?]” She testified that when she again told Mckenzie to give her
a moment,
[Mckenzie] hit me on my leg. And then he started in an upward motion,
and so I turned over on my side and put my arm up, and he hit me in the
back of the head and then—with his cane. And then I went—kind of
ducked down more, and he hit me a couple of times on my back.
[H]e pulled the knife out of the cane . . . and had it up in the air.
He was threatening . me with that knife.[1~
.
McKenzie took Cooper’s cell phone as he left the room, and Cooper testified that she
“was scared for [her] life.” As such, she drove to her daughter’s home and waited for
her to return. After waiting for around 30 minutes, Cooper drove to a nearby hospital
and borrowed someone’s phone to call 911. During the 911 phone call, which was
played at trial, Cooper alleged that Mckenzie had been “abusing [her]” and “hitting [her]
with his cane and stuff.”
Mckenzie testified that he “had been drinking” that night. And originally, he
testified that he could not “remember what [the argument] was about” but later
explained that he was asking Cooper to take the trash out. Mckenzie admitted that he
At McKenzie’s home, Officer Zachary Rockseth confiscated a cane with a knife
measuring “[a]bout 13 inches.”
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“took the cane and hit her on the top of the leg” and “tapped her twice” on the shoulder.2
He also admitted to taking Cooper’s cell phone “because she had kind of gotten into the
habit of calling the police whenever [they] got into an argument.” Additionally, he
admitted that they had previously got into “a little scuffle” when he was using his walker.
He denied, however, wielding a knife or threatening her with one on the night of the
incident or prior to.
The State charged McKenzie with second degree assault with a deadly weapon
against a family or household member, a crime of domestic violence. Before trial,
McKenzie moved to exclude prior bad act evidence against him. The court granted the
motion with respect to McKenzie’s prior convictions. However, the court allowed the
State to put forth potential prior bad act evidence of McKenzie’s “behavior leading up to
th[e] incident.”
At trial, Federal Way Police Officers Zachary Rockseth and Robert Bracco
testified that on October 27, 2017, they were dispatched to St. Francis Hospital in
Federal Way, Washington, where they met Cooper. Officer Rockseth took Cooper’s
statements, and he testified that he observed “some red markings” on Cooper’s back
that were “noticeable to the eye.” But the marks are not clearly visible in the pictures
that Officer Rockseth took at the scene and that the State entered into evidence at trial.
Officer Rockseth testified that after speaking with Cooper, he and Officer Bracco
accompanied other officers to McKenzie’s residence. Upon arrival, Officer Bracco
observed a man with a leg cast and crutches come out of the woods near the residence.
2 McKenzie also confirmed that he “testified . . . that [he] hit her on the leg and
then hit her on the shoulder at least twice.”
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No. 79357-8-1/4
When asked whether “other elements . . . of the description that was provided .
match[ed McKenzie’s description],” Officer Rockseth answered that McKenzie also
matched the description for “an Ingress booking photo, so it’s the booking photo that’s
used for King County.” McKenzie objected outside the presence of the jury and moved
for a mistrial. The State recommended that the court provide a curative instruction to
the jury. But Mckenzie’s counsel determined that an instruction to disregard the
statement would only serve to highlight it. The trial court reserved its ruling on the
motion for a mistrial. After, in the presence of the jury, the State further questioned
Officer Rockseth on the issue, and Officer Rockseth elaborated that he also verified
Mckenzie’s identity through a Department of Licensing photo.
Officer Bracco testified that while apprehending Mckenzie—but before he told
McKenzie he was being arrested for assault—McKenzie “was saying how his mother
[wa]s making up the story about the assault.” Officer Bracco testified that Mckenzie
stated, “He was glad he was going to jail before he killed someone.” Officer Bracco
then testified regarding the exchange between himself and Mckenzie:
Q. And what did he specifically say that he did not care about?
A. Can I refer from my report?
Q. Absolutely. And I would just make sure that we’re being very specific
about what the response—or what he says in response to saying he
didn’t care about.
A. He was ranting about how he kidnapped some—
Q. Oh. So again I want to be very specific.
A. Uh-huh.
Q. What specifically did he say he didn’t care about?
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A. About going to jail.
Mckenzie again moved for a mistrial based on Officer Bracco’s reference to his prior
kidnapping conviction. McKenzie argued that the cumulative effect of both officers’
statements could not “be remedied by a limiting instruction.” The following day, the trial
court entered an oral ruling denying Mckenzie’s motion for mistrial. Specifically, it found
that the booking photo testimony was “not so overly prejudicial as to trigger a mistrial”
and that the kidnapping testimony was not “manifestly prejudicial.”
A jury convicted McKenzie as charged. The court sentenced McKenzie and
ordered the payment of a $500 victim penalty assessment and a $100 DNA collection
fee. McKenzie appeals.
ANALYSIS
Mistrial
McKenzie contends that the trial court erred when it denied his motion for a
mistrial. We disagree.
The State acknowledges that the testimony was improper evidence under
ER 404(b). We review a court’s denial of a motion for mistrial for abuse of discretion.
State v. Rodriguez, 146 Wash. 2d 260, 269, 45 P.3d 541 (2002). “The trial court should
grant a mistrial only when the defendant has been so prejudiced that nothing short of a
new trial can insure that the defendant will be tried fairly.” State v. Johnson, 124 Wn.2d~
57, 76, 873 P.2d 514 (1994) (quoting Statev. Hopson, 113 Wash. 2d 273, 284, 778 P.2d
1014 (1989)). To this end, we recognize that “[t]he trial court is in the best position to
determine if a trial irregularity caused prejudice.” State v. Wade, 186 Wash. App. 749,
773, 346 P.3d 838 (2015). And we overturn “[a] trial court’s denial of a motion for
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No. 79357-8-1/6
mistrial . . . only when there is a ‘substantial likelihood’ that the error prompting the
request for a mistrial affected the jury’s verdict.” Rodriguez, 146 Wash. 2d at 269-70
(internal quotation marks omitted) (quoting State v. Russell, 125 Wash. 2d 24, 85, 882
P.2d 747 (1994)). To determine whether the improper testimony “may have influenced
the jury,” we consider “(1) the seriousness of the irregularity, (2) whether the statement
in question was cumulative of other evidence properly admitted, and (3) whether the
irregularity could be cured by an instruction to disregard the remark, an instruction
which a jury is presumed to follow.” State v. Escalona, 49 Wash. App. 251, 254, 742 P.2d
190 (1987) (citing State v. Weber, 99 Wash. 2d 158, 165-66, 659 P.2d 1102 (1983)).
Our opinion in Wade is instructive. A jury convicted Gary Wade of the second
degree murder of Michelle Thornton. Wade, 186 Wash. App. at 754. Wade’s DNA
matched the DNA profile found on Thornton’s body, there was substantial surveillance
video evidence of him entering Thornton’s apartment building near the time of her
death, and Wade admitted that he “plac[ed] Thornton in the closet after she had a heart
attack.” Wade, 186 Wash. App. at 759. In contrast to Wade’s testimony, medical expert
testimony found that Thornton “died of asphyxia from strangulation.” Wade, 186 Wn.
App. at 760.
At trial, Detective Moore testified that a fellow detective “notified [him] that. .
Wade. . . had been booked into King County Jail recently prior to that.” Wade, 186
Wash. App. at 774. And “[w]hen asked if he had a photograph to aid him in identifying
Wade, Detective Moore replied, ‘Yes[,] we had a recent booking photo.” Wade, 186
Wash. App. at 774 (second alteration in original). The jury was instructed that Detective
Moore’s reference was to a misdemeanor drug violation that “was unrelated to the
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No. 79357-8-1/7
investigation of this case.” Wade, 186 Wash. App. at 774. Wade moved for a mistrial,
which the trial court denied. Wade, 186 Wash. App. at 773. On appeal, we concluded
that the trial court did not abuse its discretion because “the testimony referring to a
booking photograph did not indicate that Wade had a propensity to commit murder or
that he had even been previously convicted of a crime,” and the reference was cured by
the stipulation. Wade, 186 Wash. App. at 775; see also State v. Gilcrist, 91 Wash. 2d 603,
612, 590 P.2d 809 (1979) (‘A mistrial should be granted only when ‘nothing the trial
court could have said or done would have remedied the harm done to the defendant.”
(quoting State v. Swenson, 62 Wash. 2d 259, 280, 382 P.2d 614 (1963), overruled on
other grounds j~y State v. Land, 121 Wash. 2d 494, 851 P.2d 678 (1993))).
Here, the irregularities at trial are less serious than those in Wade. Officer
Rockseth’s testimony gave less detail, and he mentioned a booking photo but did not
refer to McKenzie’s time in jail. And the “mere fact that someone has been to jail does
not indicate a propensity to commit” the charged crime. State v. Condon, 72 Wash. App.
638, 649, 865 P.2d 521 (1993). Officer Bracco only mentioned that Mckenzie “was
ranting about how he kidnapped some—.” And like in Wade, the testimony did not
indicate that Mckenzie had the propensity to commit assault or that “he had even been
previously convicted of a crime.” Wade, 186 Wash. App. at 775. In fact, the testimony
does not make clear any of the context. Both officers provided no details of McKenzie’s
convictions during their ambiguous testimony. And while the testimony was not
cumulative of any other testimony or evidence, as McKenzie’s counsel below
recognized, a curative instruction would have served only to highlight the improper
testimony. But without knowing that Mckenzie was previously convicted of kidnapping
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and in the context of both McKenzie’s erratic behavior as testified to by both officers and
his drinking the night of the incident, the testimony was not “of such a nature as to likely
impress itself upon the minds of the jurors.” But ~f, Escalona, 49 Wash. App. at 255
(holding that the statement that the defendant “already has a record and had stabbed
someone” could not be cured by an instruction to the jury in a trial for second degree
assault with a deadly weapon) (quoting State v. Miles, 73 Wash. 2d 67, 71, 436 P.2d 198
(1968)). Finally, the testimony was insignificant given McKenzie’s admission that he hit
Cooper with his cane. Because it is clear that there is not a substantial likelihood that
the irregularities, even cumulatively, affected the jury’s determination of McKenzie’s
credibility or of his guilt, the trial court did not abuse its discretion.
DNA Fee
McKenzie asserts that because he has already provided his DNA sample due to
a prior felony conviction in King County, the $100 DNA collection fee should be stricken.
The State concedes. We accept the State’s concession.
We affirm the conviction and sentence but remand for the trial court to strike the
$100 DNA collection fee.
A~JA d ‘I
WE CONCUR: