State of Washington v. Earl Thomas Clapper ( 2017 )

1
I
FILED
MAY 2, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34002-3-111
Respondent, )
)
v. )
) UNPUBLISHED OPINION
EARL THOMAS CLAPPER, )
)
Appellant. )
SIDDOWAY, J. -Earl Clapper appeals his conviction for attempting to elude a
police vehicle, arguing that insufficient evidence supports his identity as the driver who
eluded police in a friend's car. He also contends his federal and state constitutional rights
were violated when the trial court convened a discussion about a jury inquiry with
lawyers outside his presence. Because the evidence was sufficient and Mr. Clapper fails
to demonstrate that he was not present or consulted when a response to the jury inquiry
was framed, we affirm.
FACTS AND PROCEDURAL BACKGROUND
At about 3:30 a.m. one morning in March 2015, Spokane Police Officer Paul
Gorman was driving home after his shift, heading north on Maple Street. Maple Street
and Ash Street, located a block to the west, comprise a couplet: Ash operates one-way
southbound; Maple Street operates one-way northbound. In the vicinity of Boone and
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Maxwell streets, not far north and west of downtown, Officer Gorman saw a car driving
the wrong way toward him. Preferring not to make a traffic stop, the officer flashed his
lights, hoping the driver would realize it was a one-way street and turn around.
The driver immediately turned westbound and headed toward Ash, but his turn
was into a dirt alley and he was traveling too fast given the alley's condition. Officer
Gorman turned west on the next paved road and saw that the car had now turned north on
Ash, once again driving the wrong way on a one-way street. At that point, the officer
decided to follow the car, intending to make a stop. He activated his overhead lights and
siren. The car sped up and a chase ensued. Officer Gorman radioed what was happening
and requested assistance.
The eluding driver soon moved off of arterials and onto residential streets,
continuing to travel at as much as 80 miles an hour. At that point, Officer Gorman
decided for safety reasons to terminate the pursuit. Because eluding drivers sometimes
respond to the termination of a pursuit by trying to hide or by parking and fleeing, Officer
Gorman and other responding officers continued to search the area, driving at posted
speeds with their emergency equipment off. Officer Gorman occasionally sighted the
eluding car, which was driving with its lights off. When the car was seen entering the
Corbin Park neighborhood, officers believed they had the driver contained; the
neighborhood is backed by a hillside and egress is limited to three arterials that could
easily be monitored.
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It was not long before Officer Gorman spotted the errant car, pulled all the way up
a long residential driveway. The driver had abandoned it. Officer Gorman had never
been able to read the license plate number of the eluding vehicle but he recognized the
· car by its color (red), his estimation of its model (a newer car he believed to be a Toyota),
and by extensive damage to its front end. The car proved to be a 2011 Toyota Corolla.
The engine of the parked car was very hot and it smelled of burning oil, as one would
expect of a car that had just been driven hard.
Officer Gorman happened to have a K-9 partner, Axel, who was headed home
with him when the wrong-way driver was encountered. Officer Gorman took Axel to the
driver's car door of the Toyota, gave him the command to track, and Axel began, leading
the officer past a detached garage to a high concrete fence, suggesting that whoever fled
the car had jumped the fence. To enter the adjacent yard, Officer Gorman took Axel
around the front to enter through a gate. As he was entering the yard, Officer Gorman
heard other officers giving commands to someone and saw that a man had emerged,
hands up, from a yard a couple of homes away. While other officers detained and spoke
with a man who turned out to be Earl Clapper, Officer Gorman had Axel finish tracking
the driver's scent. Beginning at the opposite side of the concrete fence to which he had
tracked earlier, Axel continued through two yards to where Mr. Clapper had surrendered.
In surrendering to other officers, Mr. Clapper stated "[I]t's me you're looking for,
I give up, don't hurt me." Report of Proceedings (RP) at 96. He was ordered to get
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down, complied, and was handcuffed. He was read his Miranda 1 rights, said he
understood them, and volunteered that he had never been in any car and had never run
from the officers. He also said that his backpack might be in the car, but he had not been.
After returning Axel to his patrol car, Officer Gorman approached Mr. Clapper
and asked what he was doing in the area, to which Mr. Clapper responded he was staying
at a nearby hotel, had been listening to a police scanner, and heard that police were
chasing a car whose license plate number he recognized as that of his girlfriend, Tracy
Varner. When Officer Gorman told Mr. Clapper he never called in the license plate
number, Mr. Clapper corrected himself, saying he knew his girlfriend's car was red and
was being driven around that evening, so he assumed the car being chased was hers. He
said he had left his backpack in her car and had come to retrieve it.
One of the responding officers inspected the Toyota following the interview of
Mr. Clapper. The officer had seen Mr. Clapper, knew he was a large man, and noticed
that the Toyota's driver's seat was in its rear-most position and the seat was reclined all
the way-suggesting to the officer that someone of large stature had been driving it.
Mr. Clapper was charged with attempt to elude a police vehicle. "[D]efendant
information" included in the charging document indicated that Mr. Clapper was six feet,
three inches tall and weighed 407 pounds. Clerk's Papers (CP) at 1.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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At trial, the State called Officer Gorman and two other Spokane police officers
who had participated in Mr. Clapper's pursuit and arrest. Officer Gorman conceded he
had never seen who was in the Toyota during the chase, but stated that upon viewing the
vehicle in the driveway, including the engine's temperature and smell, it was "[v]ery
obvious this was the car [he] was chasing." RP at 88. He testified to Axel's training and
to how Axel had tracked a scent from the Toyota's driver's side door to where Mr.
Clapper surrendered. The two other officers testified to Mr. Clapper's surrender that
evening, the position of the driver's seat in the Toyota, the statements Mr. Clapper had
made, and the fact that he was sweating profusely when encountered.
Ms. Varner was the only witness called by the defense. She testified that on the
evening before the chase, she had a barbecue at her home and Mr. Clapper, whom she
described as "a friend of a friend," attended. RP at 14 7. When she decided to go to bed,
four or five guests remained, one being Mr. Clapper. None had a vehicle to leave in. She
testified to making the following offer upon retiring:
A .... I said if anyone feels like they can drive, I don't care if you take my
car.
Q. Did you make that offer specifically to Earl?
A. No.
Q. Did you make that offer at all to Earl?
A. No.
RP at 151.
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Ms. Varner also testified that she did not believe Mr. Clapper drove her car that
night, but without explaining her reason for that belief. The implication of her testimony
was that she believed Mr. Clapper was too large to drive her car. Defense counsel
elicited Ms. Varner's testimony that her Toyota Corolla was a compact car that was "not
made for big men." RP at 149. She was asked to describe the size of the guests who
were offered her car the night of the chase, and she ascribed heights and weights to three
of them that would make them materially smaller than Mr. Clapper. She testified that a
fourth "lives, like, two blocks away, so she was walking home." RP at 151.
On the first morning of the jury's deliberations, it submitted five questions to the
court. 2 The trial court's judicial assistant convened what the trial court later described as
a "three-way conversation on the phone" addressing how to respond. RP at 196.
According to the court, all agreed that it was best to "respond that the jury was to
rely upon the instructions they had been given, and their notes and memories as to the
evidence." RP at 196. That was the substance of the court's response.
The jury found Mr. Clapper guilty as charged. He appeals.
2
The jurors posed the following questions: "Was the driver's seat reclined? Was
Clapper charged with [ ]reckless drivin[g] or DUI? Do we know the position of front
passenger seat[?] Did police follow up on hotel [and] scanner[? and] Where does
Clapper live[?]" CP at 18.
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ANALYSIS
Mr. Clapper assigns error to (1) his conviction on the basis of constitutionally
insufficient evidence that he was the driver of the eluding car, and (2) the court's conduct
of proceedings addressing the juror's questions outside his presence. He also asks the
panel to decline to award appellate costs should the State substantially prevail. We
address the three issues in tum.
I. The State presented sufficient evidence that Mr. Clapper was the
driver of the eluding vehicle
In criminal prosecutions the State "bears the burden of establishing beyond a
reasonable doubt the identity of the accused as the person who committed the offense."
State v. Hill, 83 Wash. 2d 558, 560, 520 P.2d 618 (1974). As with all sufficiency
challenges, "[t]he test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wash. 2d 192,
201, 829 P .2d 1068 ( 1992). In a sufficiency challenge, "all reasonable inferences from
the evidence must be drawn in favor of the State and interpreted most strongly against the
defendant." Id. A defendant raising such a challenge "admits the truth of the State's
evidence and all inferences that reasonably can be drawn therefrom." Id.
As the jury was informed by the court's instructions, "The law does not
distinguish between direct and circumstantial evidence in terms of their weight or value
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in finding the facts in this case. One is not necessarily more or less valuable than the
other." RP at 164 (Instruction 7); accord State v. Siert, 186 Wash. 2d 869, 879, 383 P.3d
466 (2016). We defer "to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence." State v. Cordero, 170 Wash. App. 351,
361, 284 P.3d 773 (2012).
In closing argument, Mr. Clapper's lawyer never challenged Officer Gorman's
certitude that the driver who attempted to elude him was driving Ms. Varner's Toyota.
Defense counsel argued, instead, that the State failed to prove beyond a reasonable doubt
that the driver was not one of Ms. Varner's other guests, to whom the Toyota had been
offered. On appeal, Mr. Clapper emphasizes evidence that Ms. Varner offered use of her
car to several persons but not to him, that Officer Gorman could not see the car's
occupant or occupants, and that about five minutes passed between when officers last saw
the Toyota and when it was found parked in the driveway-yet officers failed to search
for anyone else in the neighborhood after Mr. Clapper surrendered. Br. of Appellant at 5.
But all of the following evidence supports the jury's verdict: Mr. Clapper was one
of the four or five individuals present when Ms. Varner made an unqualified offer of use
of her car. He surrendered to police in close proximity to where the car was found parked
and abandoned, initially telling officers "[I]t's me you're looking for" and later offering
changing and implausible explanations for his presence. RP at 96. Axel tracked a scent
from the driver's car door to where Mr. Clapper surrendered. Mr. Clapper was sweating
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profusely when encountered by police, consistent with someone who had engaged in a
chase, leapt a high fence, and tried to escape or hide. His backpack was in the car. Even
Ms. Varner's implication that Mr. Clapper was too large to drive her Toyota was
consistent with the unusual fully-back, fully-reclined position in which the driver's seat
was found.
The State's evidence that Mr. Clapper was the driver was sufficient.
II. Mr. Clapper does not demonstrate that the telephone conference
dealing with the jury's inquiry violated any constitutional right
A criminal defendant enjoys a right to be present at critical proceedings, rooted in
the Sixth Amendment to the United States Constitution; the due process clauses of the
state and federal constitutions (U.S. CONST. amend. V; WASH. CONST. art. I, § 3); and
article I,§ 22 of our own constitution. Siert, 186 Wash. 2d at 874. The core of the
constitutional right is the right to be present when evidence is being presented, but
beyond that the defendant has a right to be present at a proceeding "' whenever his
presence has a relation, reasonably substantial, to the ful[l]ness of his opportunity to
defend against the charge."' State v. Irby, 170 Wn.2d 874,881,246 P.3d 796 (2011)
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674
(1934), overruled in part on other grounds sub nom. Malloy v. Hogan, 378 U.S. 1, 84 S.
Ct. 1489, 12 L. Ed. 2d 653 (1964)).
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The right to be present is not absolute. "[B]ecause the relationship between the
defendant's presence and his 'opportunity to defend' must be 'reasonably substantial,' a
defendant does not have a right to be present when his or her 'presence would be useless,
or the benefit but a shadow.'" Id. (quoting Snyder, 291 U.S. at 106-07). Where the court
and counsel address legal matters not requiring a resolution of disputed facts, it is well
settled that a defendant has no right to be present. In re Pers. Restraint ofLord, 123
Wn.2d 296,306,868 P.2d 835 (1994), ajf'd, 161 Wash. 2d 276 (2007); Irby, 170 Wash. 2d at
881. Nor does a defendant's right to be present extend to ministerial matters. In re Pers.
Restraint of Pirtle, 136 Wn.2d 467,484, 965 P.2d 593 (1998).
The few cases that have addressed a defendant's constitutional right to be present
when a trial court considers how to respond to a jury inquiry during deliberations have
sometimes assumed that there is such a right, but have more recently turned on whether
responding to the jury's question involved a purely legal issue. Compare State v. Ratliff,
121 Wash. App. 642, 646, 90 P.3d 79 (2004) (assuming a constitutional right), with State v.
Sublett, 156 Wash. App. 160, 183, 231 P.3d 231 (2010), ajf'd, 176 Wash. 2d 58 (2012) (right
to be present did not apply to "the purely legal issue of how to respond to the jury's
request for a clarification in one of the trial court's instructions"). Requests for guidance
from the court when jurors feel deadlocked have been treated as a critical stage with
"much ... at stake," and thereby one at which a defendant has a right to be present. State
v. Burdette, 178 Wn. App. 183,201,313 P.3d 1235 (2013).
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As the State points out, we need not determine whether the questions posed by Mr.
Clapper's jury implicated his constitutional right to be present because he does not
demonstrate that he was not present or consulted when the three-way conference took
place following receipt of the jury's inquiry. On very similar facts, our Supreme Court
held in State v. Jasper, 174 Wash. 2d 96, 124,271 P.3d 876 (2012), that the defendant failed
to shoulder his burden to demonstrate a violation of his constitutional right to be present.
The record in Jasper revealed that the defendant was out of custody during jury
deliberations and therefore might have been present or been contacted when the trial
court conferred with counsel. The court cited the principle that on a partial or incomplete
record, appellate courts will presume a conceivable state of facts consistent with the
record that will "' sustain and support the ruling or decision complained of" rather than
presume facts'" for the purpose of finding reversible error."' Id. at 123-24 (quoting
Barker v. Weeks, 182 Wash. 384,391, 47 P.2d 1 (1935).
Here, as in Jasper, the record reveals that Mr. Clapper was not in custody. It
reveals that closing arguments were completed near the end of the day, following a short
trial. Jury deliberations either began, or began in earnest, the following morning, and by
12: 10 p.m., the parties had returned to court to hear the jury's verdict. It was after the
trial court accepted the unanimous verdict and excused the jury that it made its record
about the handling of the jury's inquiry. Its record establishes that the jury's inquiry had
been received at around 9:40 a.m. that morning, that the judicial assistant had convened
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the three-way conference call, and that the court had responded to the jury in the manner
agreed during the call. After making the record, the court stated, "I don't know if either
counsel wish to comment on that. You certainly are welcome to if there is anything you
want to say about it." RP at 197. No one commented. It is entirely conceivable that Mr.
Clapper was awaiting the jury's verdict at his lawyer's office or subject to immediate
contact, and was able to sit in on the call or be consulted. That no one commented when
invited to do so by the court further suggests that the defendant was not excluded. 3
Assuming Mr. Clapper had a constitutional right to be present, he fails to demonstrate a
violation.
We also conclude that any error would be harmless beyond a reasonable doubt.
"Generally, where the trial court's response to a jury inquiry is 'negative in nature and
conveys no affirmative information,' no prejudice results and the error is harmless."
State v. Jasper, 158 Wn. App. 518,541,245 P.3d228 (2010), ajf'd, 174 Wash. 2d 96 (2012)
(quoting State v. Russell, 25 Wn. App. 933,948,611 P.2d 1320 (1980)). A court's
communication with the jury is negative in nature-or neutral-when it "simply [refers]
the jury back to the previous instructions." State v. Langdon, 42 Wash. App. 715, 717-18,
3
In Siert, filed after the parties completed their briefing, our Supreme Court held
that a violation of a defendant's right to be present is waived if the defendant himself
learns of the violation before it is too late to object, yet fails to object. 186 Wash. 2d at 875-
76. Here, the record's silence as to when Mr. Clapper learned of the three-way
conference operates in his favor. If he did not learn until after the jury's verdict was
accepted and the jury was excused, his opportunity to object came too late.
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713 P.2d 120 (1986). Mr. Clapper suggests that had he been present, he would have
asked the court to specifically direct the jury to its instruction on the State's burden of
proof, thereby reminding jurors of their duty "to hold any evidentiary shortcoming
against the State." Br. of Appellant at 11. The trial court's response directing the jurors
to "[p]lease review your instructions as to the law" did that, without emphasizing the
burden of proof instruction to the exclusion of others in a way that could be viewed as a
comment on the evidence. CP at 18.
Ill. Appellate costs
Mr. Clapper asks in his brief that we waive costs on appeal if he does not prevail,
claiming he is currently indigent and will unlikely be able to pay in the future. "RAP
14.2 affords the appellate court latitude in determining if costs should be allowed." State
v. Nolan, 141 Wash. 2d 620, 626, 8 P.3d 300 (2000). By general order, this court has
created a procedure by which appellants may provide a panel with evidence and
argument on the basis of which the panel can exercise informed discretion whether to
deny costs. See Gen. Order of Division III, In re the Matter of Court Administration
Order re: Request to Deny Cost Award (Wash. Ct. App. June 10, 2016).
Mr. Clapper has not complied with our general order. We therefore decline to
consider his request. The denial is without prejudice to his right to demonstrate his
current or likely future inability to pay such costs to our commissioner. See RAP 14.2.
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Affirmed.
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:
Lawrence-Berrey, J.
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