State Of Washington, V. Joseph Isaiah Leonard ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 86179-4-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JOSEPH ISAIAH LEONARD,
Appellant.
DÍAZ, J. — Joseph Isaiah Leonard appeals his conviction for attempting to
rob a cherry stand with a firearm and assaulting witnesses to the crime. He argues
the State violated his constitutional right to confront two key witnesses, when it
admittedly “improperly” discussed the content of those witnesses’ testimony prior
to trial. Leonard additionally argues that the trial court erred by failing to dismiss
the charges against him after the State mishandled discovery, and by allowing the
State to make an improper statement in its closing argument. We disagree, affirm
the conviction, but remand to strike his Victim Penalty Assessment (VPA).
I. BACKGROUND
The parties do not dispute that the following facts occurred, as Leonard
claims that this matter is a case of mistaken identity. On June 27, 2020, a man
with a face covering and dark bandana approached a cherry stand in Buckley, and
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ordered the attendants to give him their money. Both of the attendants, Suzi
Goodwin and Laura Meade, saw the assailant with his hands on a firearm.
Goodwin put her hands up and stepped away. Meade said, “[h]ell no.” The man
tugged Meade’s fanny pack, which they then tussled over. Goodwin screamed.
The man ran away.
Aaron and Jillian Horner were a married couple who lived near the fruit
stand. When they heard screaming, Mr. and Ms. Horner and their young son ran
towards the noise. Mr. Horner saw a man run near their house and toward a
parked car. The man pointed a gun at the Horners from approximately 50 feet
away, with Mr. Horner standing in front of Ms. Horner and their son. Mr. Horner
saw the gunman get into the passenger side of a “light-teal-green Dodge Stratus.”
The Horners’ other contemporaneous observations will be described in more detail
below.
The Stratus traveled at speeds exceeding 100 miles per hour as a police
vehicle pursued it for approximately four to five miles. The Stratus collided with
another car and then rolled off the road. Law enforcement arrested a man who
exited the passenger side, with dark hair, wearing a grey sweatshirt, and identified
him as Leonard. At the scene, law enforcement found a firearm. Law enforcement
also found a bandana nearby that was “a black and white piece of cloth with white
filigree and teal, orange, red, black, and white markings in the middle.”
The State charged Leonard with two counts of attempted robbery in the first
degree, two counts of assault in the second degree, and one count of unlawful
possession of a firearm. As we will discuss in more detail later, before his trial
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began, Leonard brought multiple motions related to the State’s alleged
prosecutorial misconduct, both for its contact with the Horners and for providing
incomplete or dilatory discovery. The trial court denied Leonard’s various motions
and ordered alternate remedies which will be discussed below.
At trial, the jury found Leonard guilty on all counts. Leonard appeals.
II. ANALYSIS
A. Leonard’s Sixth Amendment Right to Cross-Examine the State’s Witnesses
1. Additional Factual and Procedural Background
On the same date of the robbery, the Horners each gave handwritten
statements describing their assailant. Ms. Horner described “a hispanic [sic] male
wearing a white sweatshirt, dark blue jeans and a black bandana as a face mask.”
(Emphasis added). Meanwhile, Mr. Horner described a man with a “dark
complexion, wearing a black bandana with white flowers on it. He had dark jeans
and a white hoodie.” (Emphasis added).
Approximately six months later, between December 14 and 15, 2020,
State’s counsel had the following email exchange with Ms. Horner:
State: I hope you remember me; we spoke few weeks ago about that
robbery you and your husband witnessed. I found the handwritten
statements you and your husband drafted, and am hoping you can
refresh your memory. Also I’ve attached the 911 call you made. Can
you review for accuracy? And do these items (sweatshirt and
bandana) look familiar? 1 Can you please ask your husband? Thank
you!
Ms. Horner: The bandana definitely looks correct. That doesn’t look
like the sweatshirt the guy who actually robbed the place was
wearing though, unless he was wearing it underneath. That possibly
1 The email attached an audio file of the 911 call and photos of the items in
question.
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could’ve been the drivers [sic], he never left the vehicle so we never
got a good look at him.
State: Thank you, [Ms. Horner]. This was the sweatshirt that the
medics cut off of him and nothing else was found inside the car. The
driver was wearing a blue/black shirt.
Ms. Horner: I thought the hoodie was white, but it could’ve been grey.
Or they ditched it when they were running before police were actually
chasing them. The bandana is for sure it though.
State: In the light, it could very well have appeared white. And others
described a grey hoodie. So we’re good. Thank you!
(Emphasis added).
Ms. Horner then responded: “true, everything happened so fast and
truthfully all I could focus on was the gun lol.” The two continued to correspond
about where the assailant parked his car, etc.
In March 2021, law enforcement interviewed the Horners, separately. Mr.
Horner described a “black mask” with a “white pattern on it . . . looked like the
bandanas . . . it had a native pattern on it.” He described a “grey hoodie” with a
“Seahawk symbol on the front of it, the Native American style.” Ms. Horner stated
“he had a black bandana with like white . . . flowers from a distance . . . jeans and
a long hoodie and a mask, like you know, a bandana . . .” She did not describe
the color of his sweatshirt.
In November 2021, Leonard moved to dismiss the charges against him
(except for the charge of unlawful possession of a firearm) under CrR 8.3(b) based
on the State’s conversation with Ms. Horner. 2 Specifically, Leonard asserted that
2 Prior to that motion, Leonard had moved to disqualify the prosecutor for emailing
Ms. Horner because “the intent was to sway the testimony . . . of the suspect
wearing a white hoodie . . . to a gray hoodie.” And, in so doing, Leonard claims
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the State “tamper[ed]” with the Horners’ testimony, arguing “we have a witness
who originally described a white sweatshirt, effectively being coached to change
testimony to that of a gray sweatshirt – here, one with a Seahawks logo.” At no
time did Leonard argue his constitutional rights were violated.
At the hearing, the State conceded its communications with Ms. Horner
were “improper.” The State further conceded that Mr. Horner was likely privy to
the email correspondence between it and Ms. Horner, thus potentially tainting his
testimony too. However, the State argued the court should consider available
intermediate remedies short of dismissing the charges. The State offered not to
elicit in-court identification of the sweatshirt or bandana from the Horners. Instead,
it would introduce only the original (inaccurate) statements the Horners made to
law enforcement on the day of the incident, and not offer the (accurate) statement
in Mr. Horner’s subsequently recorded interview.
The court denied Leonard’s motion to dismiss. The court noted that “the
difficulty with this motion is the encouragement to draw a different conclusion than
what was concluded at the scene. It’s not improper to refresh. It is improper to
encourage.” The court concluded “there needs to be some sort of remedy
fashioned . . . the remedy that’s been proposed is one that I’m going to order,
she “made herself a material witness and is thus no longer qualified to act as an
advocate” per RPC 3.7(a). The trial court, though expressing concern about the
State’s conduct, denied Leonard’s motion to disqualify because “I don't think it rises
to the level under the analysis that the Court has to have . . . to require that [the
State] be removed from the case. I do believe that the remedy is that the text
messages themselves, in whatever format is determined at trial would be
admissible, and it would be on the four corners of those text messages.”
(Emphasis added).
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which is, essentially, the State is stuck with the description that the Horners
provided at the scene to the officers.” (Emphasis added). The court further
ordered that, if Leonard wanted to impeach either of the Horners, he could
introduce the email correspondence between them and the State.
2. Law
“The right to confront and cross-examine adverse witnesses is guaranteed
by both the federal and state constitutions.” State v. Darden, 145 Wn.2d 612, 620,
41 P.3d 1189 (2002) (quoting U.S. CONST. amend 6; CONST. art. I, § 22). “The
primary and most important component is the right to conduct a meaningful cross-
examination of adverse witnesses.” Id. “The purpose is to test the perception,
memory, and credibility of witnesses.” Id. “Whenever the right to confront is
denied, the ultimate integrity of this fact-finding process is called into question . . .
[a]s such, the right to confront must be zealously guarded.” Id. “However, the right
to cross-examine adverse witnesses is not absolute.” Id.
Namely, although in a different context, 3 our Supreme Court has held that
“[t]he Sixth Amendment to the United States Constitution guarantees a defendant
a fair trial but not a trial free from error.” State v. Fisher, 165 Wn.2d 727, 746-47,
202 P.3d 937 (2009). “The burden rests on the defendant to show the prosecuting
attorney’s conduct was both improper and prejudicial.” Id. at 747; see also Br. of
Appellant at 31 (citing State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)).
“Once proved, prosecutorial misconduct is grounds for reversal where there is a
3 Leonard’s opening brief provides a cursory and undeveloped presentation of his
somewhat novel confrontation-clause-via-misconduct argument, but he offers the
same foregoing and following legal principles.
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substantial likelihood the improper conduct affected the jury.” Fisher, 165 Wn.2d
at 747; see also Br. of Appellant at 31-32 (citing State v. Lucas-Vicente, 22 Wn.
App. 2d 212, 223–24, 510 P.3d 1006 (2022)). We review an alleged denial of such
constitutional rights de novo. State v. Lizarraga, 191 Wn. App. 530, 551, 364 P.3d
810 (2015).
3. Discussion
On appeal, Leonard asserts that the State’s conceded interference with the
Horner’s testimony violated his Sixth Amendment right to confront those
witnesses. 4 We discuss each witness in turn.
a. Ms. Horner
As to Ms. Horner, Leonard argues that the State’s interference prevented
her from testifying at all, thus implicating his Sixth Amendment right. Leonard
avers “Ms. Horner felt anxious because [the State] had compromised her testimony
on the record and she would open herself to potential perjury charges on the
stand.” Indeed, Ms. Horner did not testify, but this claim fails for several reasons.
First, Leonard does not cite to anything in the record to support the claim
that Ms. Horner “felt anxious” because of the State’s interference. The court is not
4 In his reply brief, Leonard argues both that the trial court’s denial of his CrR 8.3(b)
motion was error and, “[a]dditionally, separate from CrR 8.3,” that the State’s
misconduct “prejudiced his [constitutional] right to a fair trial.” He did not, however,
in his opening brief assign error to the court’s denial of his CrR 8.3(b) motion or
substantively argue that the basis of his constitutional claim was a generalized
right to a fair trial, arguing only that the misconduct meant “he could not
meaningfully cross-examine or impeach either witness.” To the extent they are
stand-alone claims of error, we decline to consider them because he raises both
issues for the first time on reply. State v. Pervez, 15 Wn. App. 2d 265, 272, n. 11,
478 P.3d 103 (2020).
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required to search the record to locate the portions relevant to a litigant’s
arguments. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 819, 828
P.2d 549 (1992). The record, on the contrary, indicates that neither party was able
to locate Ms. Horner before trial. And the State reported that Mr. Horner advised
that Ms. Horner feared retaliation from Leonard. When Mr. Horner testified, he
also explained that Ms. Horner was not present because she suffers from “crippling
anxiety and depression” without any suggestion that the State’s interference
caused or exacerbated those conditions. In other words, the record does not bear
out the factual causal predicate underlying the claim.
Establishing this factual predicate is important because, second, Ms.
Horner’s absence alone does not mean there was a constitutional violation of
Leonard’s right to cross-examine her because “[m]ore than the mere absence of
testimony is necessary to establish a violation of the right [to cross-examine a
State’s witness].” Lizarraga, 191 Wn. App. at 552 (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982)).
Third, although Leonard had the right, though not absolute, to compel Ms.
Horner to testify, he did not exercise it. Id. Neither party at trial requested a
material witness warrant. Instead, Leonard argued he would request a mistrial if
trial continued without Ms. Horner’s appearance, because the existing motions in
limine and opening statement were predicated on being able to cross-examine her.
However, at trial, Leonard did not move for a mistrial nor did he raise a Sixth
Amendment challenge of any kind to Ms. Horner’s absence at any time (which we
will address further below). Therefore, he cannot raise the issue now because,
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No. 86179-4-I/9
e.g., “[t]he availability of the Sixth Amendment compulsory process clause ‘is
dependent entirely on the defendant’s initiative.’” Lizarraga, 191 Wn. App. at 552(quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798(1988)).
Fourth, Leonard must show that the State’s misconduct would have
prevented him from “meaningfully cross-examining” Ms. Horner about her
description of their assailant, had she testified. Darden, 145 Wn.2d at 620. A close
reading of the email correspondence, however, shows that Ms. Horner remained
consistent about her description of a white sweatshirt instead of a grey one,
besides acknowledging once that “maybe” it could be a different color. The record
does not indicate that the State’s, concededly, improper suggestion Leonard wore
a grey sweatshirt would have changed her testimony at trial, if she had been
present. Moreover, nothing the record suggests that any effect on her testimony
would have prevented Leonard from meaningfully cross-examining her, let alone
establishes that the misconduct would have affected the final verdict against
Leonard. Fisher, 165 Wn.2d at 747.
In short, we conclude Leonard has not met his burden to show the State’s
misconduct caused Ms. Horner’s absence, prevented Leonard from meaningfully
cross-examining this witness, had he taken the initiative to compel her to testify, or
otherwise affected the verdict by such mere absence.
b. Mr. Horner
Again, the State conceded below and concedes again on appeal that Mr.
Horner—while not a participant of the email exchange—became privy to the
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correspondence between the State and Ms. Horner, thus potentially interfering with
his testimony as well. We accept the State’s concession and assume the couple
discussed the State’s improper suggestion about the color of the sweatshirt, and
discussed the State’s improper suggestion that two of its witness, at best,
compared or, at worst, coordinated their testimony. From there, Leonard argues
that this “tampering” violated his right to meaningfully cross-examine Mr. Horner’s
testimony. This claim fails for three overarching reasons, which require additional
factual background.
At trial, when the State examined Mr. Horner, it asked him: “Do you recall
what description you gave as far as his physical size and the like?” Mr. Horner
gave the following answer, which Leonard’s counsel interrupted: “He was wearing
a light –”. The court held a colloquy outside the presence of the jury, during which
the State (a) represented she was “not going to go anywhere near the hoodie,” (b)
asserted that the “jury has already heard the description he gave to the police,”5
and (c) would only ask Mr. Horner if he gave a description to the police in a “yes-
or-no fashion.”
Upon the jury’s return, the court instructed the jury to disregard the partial
answer. And the State further questioned Mr. Horner, as follows:
Q. (By the State) Mr. Horner, did a police officer make contact with
you to interview you about what happened?
A. He did, yes.
Q. And do you recall giving a description, at that time, to the police
5 The officer (Fetterman) who took Mr. Horner’s statement testified that Mr. Horner
described the clothing the gunman was wearing to Officer Fetterman as including
“[a] light -- or light-gray sweatshirt.” This testimony was not consistent with the
handwritten statement, which described the sweatshirt as white.
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No. 86179-4-I/11
about the person that pointed the gun at you and your wife?
A. Yes, I did.
Q. Did you give a description of the type of clothing he was wearing?
A. I did, yes.
Based on these facts, Leonard now avers that “Mr. Horner could not be
cross-examined about [1] his prior inconsistent statements and [2] his insinuation
that his ‘identification’ matched Mr. Leonard.”
This argument fails, first, because both claims are simply factually
inaccurate. As to the former claim, the State’s examination was limited to the
questions reviewed above, but the court expressly permitted Leonard to impeach
either of the Horners with the email correspondence between Ms. Horner and the
State to remedy Leonard’s CrR 8.3 motion. In other words, Leonard could have
elicited from Horner that his written statement described the sweatshirt as white.
Leonard simply chose not to.
As to the latter claim, Horner himself did not insinuate at trial that he
described the hoodie (correctly) as grey on the date of the crime, thus “matching”
that found on Leonard. In pertinent part, he testified that he provided “a
description” to the police without going into any detail.
To the extent the “insinuation” comes from Officer Fetterman’s inaccurate
testimony (that Mr. Horner described “a light – or light-gray sweatshirt”), Leonard
could have cross examined Officer Fetter with Mr. Horner’s written statement that
described the sweatshirt as “white.” Leonard did not impeach Officer Fetterman in
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that way, despite having the opportunity to do so. 6
On the contrary—and as the second reason this argument fails—Leonard’s
counsel on cross-examination asked Mr. Horner:
• if his memory was “fresh” when he gave the handwritten sworn
statement to law enforcement, to which Mr. Horner agreed;
• if he knew that details in the statement “matter[ed]” because law
enforcement would rely on his statements therein, to which Mr.
Horner agreed; and sought to confirm that
• “any detail that [he] might have remembered would have made it into
that statement,” to which Mr. Horner agreed.
And, in closing argument, Leonard’s counsel argued that the evidence showed it
was a “a white male in a white hoodie”, referencing inter alia Officer Fetterman’s
testimony “that Mr. Horner had told him that the suspect was wearing a white or
gray hoodie” and Ms. Horner’s 911 call where she indicated the assailant was
wearing “a white hoodie”.
In other words, despite the inconsistency of Officer Fetterman’s testimony,
Leonard’s cross-examination was focused only on driving home the reliability of
Mr. Horner’s statement. Regardless of why Leonard chose not to cross-examine
Mr. Horner about the inconsistency between his written statement and his alleged
verbal statements to the police or the prosecutor, Leonard had the opportunity to
meaningfully cross-examine Mr. Horner on all relevant details of his testimony in
such as way as to test his “perception, memory, and credibility.” Darden, 145
Wn.2d at 620 (quoting State v. Parris, 98 Wn.2d 140, 144, 654 P.2d 77 (1982)
6 Leonard also did not assign error to Officer Fetterman testifying about the out-of-
court statements Mr. Horner made as inadmissible hearsay. Therefore, we decline
to consider it.
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No. 86179-4-I/13
(quoting U.S. CONST. amend 6; CONST. art. I, § 22)). Leonard chose a different
route.
Third—and this reason applies equally to any challenge to the absence of
Ms. Horner’s testimony—“a defendant [must] raise an objection at trial or waive
the right of confrontation. Requiring an objection brings this claim to align with
what we employ in other cases where we have held that some constitutional rights
may be waived by a failure to object.” State v. Burns, 193 Wn.2d 190, 210-11, 438
P.3d 1183 (2019). Here, neither in the colloquy with the court reviewed above nor
at any other time did Leonard object on Sixth Amendment grounds to the court’s
remedial measure that Mr. Horner may only testify to the fact that he gave the
police a description at the scene. Leonard also did not object to the court’s
remedial measure that permitted Leonard to impeach his testimony with those
emails. Instead, per the record reviewed above, Leonard chose to take advantage
of the evidentiary limitation placed upon the State in cross-examination. Far from
objecting, Leonard’s counsel hammered home the discrepancy during his closing
argument, in response to which the State was silent.
For these reasons, we conclude that, even if the jury was left with some
misimpression from the officer’s testimony, Leonard chose not to correct the
misimpression either by impeaching the officer through the Mr. Horner’s written
statement or simply through Mr. Horner. Therefore, Leonard has not met his
burden to prove that he raised this challenge below or otherwise that his right to
meaningfully cross-examine Mr. Horner was hindered.
B. Whether the Trial Court Should Have Dismissed the Charges Because the
State Mishandled Discovery
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Leonard contends that government mismanagement resulted in delays
proceeding to trial. He asserts that, pursuant to CrR 8.3(b), his convictions must
be reversed and the charges against him dismissed due to this mismanagement.
We disagree.
1. Additional Factual Background
Approximately two months before trial, the State provided Leonard’s
counsel its witness list. Then a few days before trial, Leonard’s counsel noticed
that the State did not provide some photos from the car crash scene as part of
discovery, and the photos may have been taken of relevant items such as the
bandana, and other “clothing items.” Leonard did not receive these photos for the
approximately eight months when counsel was preparing for trial. The State
explained it thought Leonard received these photos, but it then promptly provided
the photos Leonard requested. Leonard moved to dismiss under CrR 8.3(b)
because the delay was “a pure discovery violation.” CrR 3.3 went unmentioned.
The court continued the trial to allow Leonard the time to review this newly
produced evidence. The court further ordered that the late-discovered
photographs be suppressed, unless Leonard and only Leonard wanted to
introduce them. In other words, the court prohibited the State from introducing
evidence in its possession that Leonard was unable to prepare to argue on the eve
of trial.
2. Discussion
Leonard argues that the State’s delays in providing the witness list and the
photographic evidence forced him to choose between his right to a speedy trial
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No. 86179-4-I/15
and his right to prepared counsel. We disagree because he fails to articulate a
cognizable claim for the relief he requests, i.e., dismissal.
Criminal Rule 3.3 governs time-to-trial requirements in Washington. The
rule provides that when a charge is not brought to trial within the time limits set
forth therein, that charge “shall be dismissed with prejudice.” CrR 3.3(h).
However, and significantly, CrR 3.3(h) provides that “[n]o case shall be dismissed
for time-to-trial reasons except as expressly required by this rule, a statute, or the
state or federal constitution.” (Emphasis added.) 7 Below and on appeal, Leonard
did not and does not identify, or explain, the violation of CrR 3.3, any statute or the
state or federal constitution underlying his request for dismissal. 8
Instead, Leonard simply makes repeated references to his right to a “speedy
trial so his counsel could be prepared” and a generic “right to a fair trial,” without
anywhere explicating how CrR 3.3, any statute, or a constitutional provision was
violated. Leonard does not assert a speedy trial claim pursuant to either the Sixth
Amendment to the United States Constitution, or article I, section 22 of our state
constitution. State v. Shemesh, 187 Wn. App. 136, 144, 347 P.3d 1096 (2015). 9
7 Our Supreme Court amended the time-for-trial rule in 2003 based on the
recommendations of the Time-for-Trial Task Force. See State v. Kone, 165 Wn.
App. 420, 435, 266 P.3d 916 (2011).
8 “[T]his procedural right is not self-executing and requires that a motion be filed to
exercise it in accordance with the procedure outlined in the rule.” State v. Walker,
199 Wn.2d 796, 804, 513 P.3d 111 (2022). Namely, under CrR 3.3(d)(3), “[a] party
who objects to the date set upon the ground that it is not within the time limits
prescribed by this rule must, within 10 days after the notice is mailed or otherwise
given, move that the court set a trial within those time limits.” That did not happen
here and, as it was not raised by the parties, we decline to address this additional
failure.
9 Had he articulated a violation of his Sixth Amendment right to a speedy trial, we
would have undertaken a two-part inquiry. State v. Iniguez, 167 Wn.2d 273, 283-
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Moreover, he nowhere asserts that he was either completely deprived of counsel,
see United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657(1984), or that his counsel was ineffective. See Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Leonard’s claim of error is premised on CrR 8.3(b). This rule provides that
“[t]he court, in the furtherance of justice, after notice and hearing, may dismiss any
criminal prosecution due to arbitrary action or governmental misconduct when
there has been prejudice to the rights of the accused which materially affect the
accused’s right to a fair trial.” CrR 8.3(b). But, CrR 3.3(b), we have held, “provides
the exclusive means to challenge a violation of the time-to-trial rule.” State v. Kone,
165 Wn. App. 420, 437, 266 P.3d 916 (2011).
It is additionally problematic that Leonard attempts to obtain reversal of his
convictions and dismissal of the charges against him by characterizing a claim of
error regarding trial delay as one of “government mismanagement.” Even if he
had asserted a CrR 3.3 violation, and undertaken the right analyses, we have
previously rejected the assertion that dismissal of charges was warranted for
purported government mismanagement prejudicing a defendant’s so-called “right
to a speedy trial” pursuant to CrR 3.3. Kone, 165 Wn. App. at 435-37.
84, 217 P.3d 768 (2009). First, we would have determined whether “the length of
the delay crossed a line from ordinary to presumptively prejudicial.” Id. If such a
line was crossed, then we would have applied the non-exclusive, four-factor Barker
balancing test to determine if a constitutional violation occurred. Id. Namely we
would have considered (1) the length of delay, (2) the reason for the delay, (3) the
defendant’s assertion of their right, and (4) prejudice to the defendant. Barker v.
Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). No such
analysis occurred below or in Leonard’s briefing on appeal.
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Finally, and tellingly, in support, Leonard cites inter alia to State v. Whitney,
96 Wn.2d 578, 580, 637 P.2d 956 (1981), State v. Michielli, 132 Wn.2d 229, 239-
240, 937 P.2d 587 (1997), and State v. Sherman, 59 Wn. App. 763, 769, 801 P.2d
274 (1990). This judicial authority is unavailing as it preceded our Supreme Court’s
2003 amendments to CrR 3.3. This court has rejected arguments relying on
decisional authority preceding the 2003 amendments to the rule. See, e.g., State
v. Thomas, 146 Wn. App. 568, 576, 191 P.3d 913 (2008). 10
Thus, we reject Leonard’s contention that the court erred in denying his
motion to dismiss under CrR 8.3(b) because the plain language of CrR 3.3(h)
“specifically prohibits dismissal for time-to-trial reasons unless expressly required”
on grounds Leonard nowhere articulates. Thomas, 146 Wn. App. at 575.
C. Whether the State Committed Misconduct in Closing Argument
1. Law
“In the context of closing arguments, the prosecuting attorney has ‘wide
latitude in making arguments to the jury and prosecutors are allowed to draw
reasonable inferences from the evidence.’” Fisher, 165 Wn.2d at 747 (quoting
State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006), overruled on other
grounds by State v. W.R., Jr., 181 Wn.2d 757, 760, 336 P.3d 1134 (2014)). “We
review allegedly improper comments in the context of the entire argument.” Id.“References to evidence outside of the record and bald appeals to passion and
prejudice constitute misconduct.” Id.10 Leonard also cites to State v. Brooks, 149 Wn. App. 373, 386, 203 P.3d 397(2009). We decline to follow Brooks because it relies likewise on judicial authority
pre-dating the 2003 amendments to CrR 3.3.
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“The burden rests on the defendant to show the prosecuting attorney’s
conduct was both improper and prejudicial.” Id. at 747. “If the defendant objected
to the offending statement at trial, he must establish that the ‘misconduct resulted
in prejudice that had a substantial likelihood of affecting the jury’s verdict.’” State
v. Slater, 197 Wn.2d 660, 681, 486 P.3d 873 (2021) (quoting State v. Emery, 174
Wn.2d 741, 760, 278 P.3d 653 (2012)).
In Slater, our Supreme Court reviewed how federal courts and our state
courts treat flight evidence to justify an inference of a defendant’s consciousness
of guilt. Id. at 667. Our Supreme Court approvingly explained the following three
principles and guidance.
First, “while flight evidence may be considered by the jury, the court must
not instruct the jury that flight evidence is conclusive proof of guilt.” Id. at 668
(citing Hickory v. United States, 160 U.S. 408, 420, 16 S. Ct. 327, 40 L. Ed. 474(1896)) (emphasis added).
Second, “[i]t is an accepted rule that evidence of the flight of a person,
following the commission of a crime, is admissible and may be considered by the
jury as a circumstance, along with other circumstances of the case, in determining
guilt or innocence.” Id. at 668 (quoting State v. Bruton, 66 Wn.2d 111, 112, 401
P.2d 340 (1965)). Further, our Supreme Court elaborated that that “accepted rule”
requires that:
the circumstance or inference of flight must be substantial and real.
It may not be speculative, conjectural, or fanciful. In other words, the
evidence or circumstances introduced and giving rise to the
contention of flight must be substantial and sufficient to create a
reasonable and substantive inference that the defendant’s departure
from the scene of difficulty was an instinctive or impulsive reaction to
18
No. 86179-4-I/19
a consciousness of guilt or was a deliberate effort to evade arrest
and prosecution.
Id. at 668 (emphasis added) (some alterations in original) (quoting Bruton,
66 Wn.2d 112-113). 11
Third, our Supreme Court approvingly surveyed cases that “opined that
flight evidence is admissible as evidence of consciousness of guilt in other cases.
Examples include cases in which the defendant flees the scene of the crime,
escapes police contact, travels to a different state, or evades arrest for a significant
period of time, among others.” Id. at 669-70. Further, it cited a case holding that
a flight instruction was proper when “‘shortly after the robbery and prior to the arrest
[police and the victim] spotted the defendant running along the shoulder of the
freeway.’” Id. at 670 (alteration in original) (quoting State v. Nichols, 5 Wn. App.
657, 659, 491 P.2d 677 (1971)).
Ultimately, “[a] trial court when faced with proposed flight evidence must
decide whether or not the alleged evidence amounts to flight that supports a
consciousness of guilt inference. If it does amount to flight evidence that supports
a consciousness of guilt inference, the judge may allow the evidence to be
considered by the jury.” Id. (emphasis added).
2. Discussion
11 This court in Freeburg examined a Fifth Circuit decision that laid out a four-step
test to examine the probative value of flight evidence: “the degree of confidence
with which four inferences can be drawn: (1) from the defendant's behavior to flight;
(2) from flight to consciousness of guilt; (3) from consciousness of guilt to
consciousness of guilt concerning the crime charged; and (4) from consciousness
of guilt concerning the crime charged to actual guilt of the crime charged.” State
v. Freeburg, 105 Wn. App. 492, 498, 20 P.3d 984 (2001) (quoting United States v.
Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)).
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No. 86179-4-I/20
Leonard argues that the State committed misconduct by making an
unsupported inference of guilt from the evidence he fled the scene. We disagree.
In closing, the State argued:
the defendant knew that he had to go. That vehicle had to flee
because he knew he had just tried to rob two ladies trying to make a
living selling cherries, that he held a gun to a family, a husband and
a wife and a child; and he knew that he needed to get out of that
area, get out of dodge –
(Emphasis added).
Leonard’s trial counsel objected. After the court excused the jury, the court
held a colloquy.
Leonard’s counsel argued:
I’m very concerned that [the State], repeatedly, is putting thoughts in
Mr. Leonard’s head, arguing facts not in evidence: “He knew he had
to get out of there.” I think the case law, the defendant was thinking
to himself, and then, of course, the prosecutor makes up something
sinister, there’s a line of cases, Walker, Glassman, Pierce, Jones,
Bohning, Russell in regards to the facts not in evidence, but there’s
no facts in evidence of what he knew or thought. I think it crosses
some lines. I’d ask that the State be told to refrain from such
information and that the jury being disregard -- or be asked to
disregard it.
(Emphasis added).
The court overruled Leonard’s objection, with a caveat:
But when we start talking too much about what the defendant knew
or didn’t know, you’re allowed to make reasonable inferences; so I’m
going to overrule the objection at this time. But I will caution you to
just be cognisant [sic] of your comments.
When the jury returned, the State concluded its closing argument:
the defendant who was extricated as the passenger in that vehicle,
in fact, was fleeing from law enforcement because the defendant was
involved in two armed robberies, although he did not get away with
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No. 86179-4-I/21
any money, and because he assaulted a family with a firearm. The
very fact of the fleeing is circumstantial evidence of his guilt.
(Emphasis added).
We hold that these statements were not improper for the following reasons.
First, consistent with the principle elucidated by our Supreme Court in
Slater, the court did not allow the State to say (let alone instruct the jury) that
Leonard’s flight was conclusive of guilt. 197 Wn.2d at 668. The State simply
indicated evidence was “circumstantial evidence” of guilt.
Second, we hold that the evidence of flight was “substantial and real” and
created a “reasonable and substantive inference” that Leonard departed both due
to an “instinctive or impulsive reaction to a consciousness of guilt” and as part of
“a deliberate effort to evade arrest and prosecution.” Id. (quoting Bruton, 66 Wn.2d
112-113). Here, the cherry stand attendants and then law enforcement testified to
seeing Leonard run from the cherry stand immediately after the robbery and then
lead the police in a dangerous high-speed chase for several miles.
In response, as his counsel asserted below, Leonard argues that the record
includes no evidence of his actual state of mind at the time of the robbery and
ensuing car chase. But, direct evidence of a defendant’s state of mind is not the
test. An inference of consciousness of guilt is sufficient. Slater, 197 Wn.2d at 670.
Here, the State did not make a “bald” and unsupported assertion. Fisher, 165
Wn.2d at 747. On the contrary, on the facts presented above, the inference here
is reasonable, substantive and sufficient.
Finally, this case is unlike in Bruton, where the defendants merely exited a
store after being accused of shoplifting, and then “walked up the street.” Bruton,
21
No. 86179-4-I/22
66 Wn.2d at 113. There, the State provided no testimony about the circumstances
of their exit from the store. Id. The full context of the facts presented at trial support
the necessary inference above and, thus, defeat Leonard’s misconduct claim.
D. VPA
Leonard argues in his reply brief that we should strike his $500 Victim
Penalty Assessment.
Formerly, RCW 7.68.035(1)(a) mandated a $500 VPA for all adults found
guilty in superior court of a crime. State v. Mathers, 193 Wn. App. 913, 918, 376
P.3d 1163 (2016). In 2023, our legislature amended section .035 to state that
“[t]he court shall not impose the penalty assessment under this section if the court
finds that the defendant, at the time of sentencing, is indigent as defined in RCW
10.01.160(3).” LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(4). This change took
effect on July 1, 2023, but applies to Leonard because his appeal was pending at
the time. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023) (the
legislature's VPA amendment applied to the defendant because the case was still
on direct appeal).
Here, there is no dispute that the trial court found Leonard indigent on June
29, 2020 or that the VPA was imposed prior to the 2023 amendments, and the
State did not oppose Leonard’s request to strike the VPA at oral argument or
otherwise. Accordingly, we remand this matter to the trial court to strike the VPA.
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No. 86179-4-I/23
III. CONCLUSION
We affirm the trial court but remand solely to strike Leonard’s VPA.
WE CONCUR:
23