State of Washington v. Adrian Sutlej Samalia

FILED
March 8, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31611-4-111
Respondent, )
)
v. )
)
ADRIAN SUTLEJ SAMALIA, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. -Adrian Samalia appeals his conviction for first degree robbery,
arguing that the evidence was insufficient and that several errors deprived him of a fair
trial. Concluding the evidence was sufficient, and the trial court properly dealt with the
other issues, we affirm.
FACTS
This case has its genesis in the theft of packages from a United Parcel Service
(UPS) truck parked in an alley in Yakima on December 9, 2011. A delivery driver left
the door to the storage area of his truck open while he went inside a business to pick up
some packages. When the driver returned, he saw two males inside the truck; each ran
off with a package when they heard him speak out.
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The men fled down the alley with the driver and the business owner in pursuit.
The second man dropped his package and pulled out a gun. He pointed it at the business
owner and both pursuers stopped. The two men got into a vehicle and left. The business
owner reported the license plate of the vehicle.
Officer Tarin Miller located and stopped the vehicle. A passenger in the backseat
fled; the officer pursued until the suspect discarded a gun. The officer then secured the
weapon and called in the fleeing suspect's direction to other responding officers. A dog
tracked the suspect to a carport where the police arrested Mr. Samalia. While Officer
Miller pursued Samalia, the car fled. Police located it later that night. A search of the
vehicle revealed Mr. Samalia's identification card in the back seat.
Mr. Samalia was charged with first degree robbery as both a principal and as an
accomplice. 1 Also charged with first degree robbery were Travis Cliett and Stacey
Melton. Mr. Cliett was identified as the first robber who got away with the package,
while Ms. Melton, the owner of the vehicle used in the escape, was accused of being the
get-away driver. Mr. Cliett's case was tried separately.2 In exchange for her agreement
to testify, Ms. Melton was allowed to plead guilty to a gross misdemeanor offense of
1
Mr. Samalia was also charged with unlawful possession of a firearm out of the
incident. That charged was heard by the bench. Mr. Samalia was acquitted.
2
Mr. Cliett was convicted of the robbery and other charges. His appeal is pending
in this court. See Court of Appeals no. 32253-0-III.
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rendering criminal assistance. The prosecutor would recommend that she be sentenced to
the 22 days she had already served in custody.
The matter proceeded to jury trial in the Yakima County Courthouse, a building
that generally closes at 4:00 p.m. Mr. Samalia's trial ran later than 4:00 p.m. on at least
three occasions. On those days, the court had security keep the doors to the courthouse
unlocked. However, the sign by the front door and the court's website both still indicated
the court closed at 4:00 p.m.
Issues in this appeal arise from the trial testimony of two of the witnesses. Officer
Chris Taylor testified that he searched the Melton vehicle at the police garage and found
Mr. Samalia' s identification card in a wallet in the back seat. Defense counsel cross-
examined Officer Taylor at length on the fact that he had not observed the vehicle prior to
the search. Counsel then got the officer to admit that he "assumed" Mr. Samalia had left
the identification in the car. A series of questions ensued which confirmed that the
officer did not know when the wallet had been placed in the car. Counsel then asked the
officer if he only assumed that Mr. Samalia left the wallet in the car because it advanced
the State's case. The court sustained the prosecutor's objection to the question. Counsel
then asked why the officer would assume it. The officer answered:
Because another officer stopped that car. Saw Mr. Samalia run from it. He
was detained shortly thereafter in a very immediate proximity to where the
car was. Based on my training experience I know these officers aren't lying.
3 Tr. of Proceedings (TP) at 333.
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Defense counsel objected to the answer and the court struck the final sentence. TP
at 334. However, unchastened by the experience, counsel then confirmed that the officer
was familiar with the rules about testifying before stating "you're willing to break those
rules if you think it will help get a conviction." TP at 334. The court sustained an
objection and counsel ended his cross-examination.
Ms. Melton later testified to her involvement in the day's activities. She stated
that Cliett and Samalia had run to her car. Cliett carried a package and Samalia sat in the
back seat. Samilia fled when the officer stopped the vehicle. Defense counsel began his
cross-examination by getting Ms. Melton to admit that she initially had lied to the police
concerning her car and being with Mr. Samalia that day. Counsel had her confirm that
she originally had been charged with first degree robbery and asked her what the
penalties were for that crime. TP at 393. An objection was raised and the jury was
excused.
During the ensuing argument, defense counsel insisted that he was permitted to
question the witness concerning the fact that the robbery charge carried a maximum
sentence of life in prison. The court believed it would be prejudicial for the jury to know
that fact. The court indicated that counsel could examine the witness about how she
faced substantially less punishment for the rendering offense. Counsel then got Ms.
Melton to agree that her expected punishment was much less significant than the robbery
punishment would have been, "almost infinitesimal by comparison." TP at 433. She also
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agreed that she received an "incredible benefit" for her testimony. TP at 434. She told
jurors that the new charge was a gross misdemeanor offense and that she would only
receive the "twenty-something" days she had already served. TP at 437.
The court instructed the jury on accomplice liability. The court rejected two
defense instructional requests that would have amended the "intent" and "use of force"
instructions. The defense argued the case to the jury that the State had not shown that a
robbery occurred or that his client was involved. Nonetheless, the jury found Mr.
Samalia guilty of first degree robbery.
Immediately after the verdict was read, the defense sought a new trial on the basis
of Officer Taylor's testimony and the prosecutor's use in closing argument of one
PowerPoint slide stating that the defendant was "GUILTY." The court denied the
motion, reasoning that its actions in striking the challenged testimony was sufficient and
that the slide did not amount to misconduct.
The court ultimately imposed a standard range sentence. Mr. Samalia timely
appealed to this court.
ANALYSIS
Mr. Samalia raises six challenges. We first consider his evidentiary sufficiency
challenge. We then address whether the jury was instructed properly, whether cross-
examination of Ms. Melton was unduly restricted, whether the court erred in denying the
motion for a new trial, and whether the courtroom was erroneously closed to the public.
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In light of our conclusion that there were not multiple errors, we do not address the
cumulative error claim.
Evidentiary Sufficiency
Mr. Samalia argues that there was insufficient evidence of robbery for two
reasons-he had already dropped his package before pulling out the gun and there was no
evidence that he knew Cliett had retained his package. Properly viewed, the evidence did
support the jury's determination.
Well settled standards govern our review of this issue. Evidence is sufficient to
support a verdict if the trier of fact has a factual basis for finding each element of the
offense proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 61 L Ed. 2d 560 (1979); State v. Green, 94 Wash. 2d 216, 221-222, 616 P.2d 628
(1980). The reviewing court will consider the evidence in a light most favorable to the
prosecution. Green, 94 Wash. 2d at 221.
"A person commits robbery when he or she unlawfully takes personal property
from the person of another or in his or her presence against his or her will by the use or
threatened use of immediate force, violence, or fear of injury to that person or his or her
property or the person or property of anyone." RCW 9A.56.190. This statute reflects a
transactional view of the crime rather than the former common law standard that force
used during a robbery needed to be contemporaneous with the taking. State v.
Handburgh, 119 Wash. 2d 284, 830 P.2d 641 (1992). Under the transactional view, a taking
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can occur outside the presence of the victim, and the necessary force to constitute robbery
can be found in the forceful retention of stolen property that was peaceably taken. Id.
Washington's robbery statute simply requires that the force be used either to obtain or
retain property, or to overcome resistance to the taking. State v. Johnson, 155 Wash. 2d
609, 611, 121 P.3d 91 (2005).
To convict Mr. Samalia on a theory of accomplice liability, the State had to prove
that (1) "With knowledge that it will promote or facilitate the commission of the crime"
he (2) "Aids ... such other person in planning or committing it." RCW 9A.08.020. The
knowledge requirement is general knowledge of the crime: '" Specific knowledge of the
elements of the coparticipant's crime need not be proved to convict one as an
accomplice.'" State v. Roberts, 142 Wash. 2d 471, 512, 14 P .3d 713 (2000) ( quoting State
v. Rice, 102 Wash. 2d 120, 125, 683 P.2d 199 (1984)). Because of this, the person must be
generally aware of the type of crime charged, but not necessarily the degree of it. In re
Pers. Restraint of Sarausad, 109 Wash. App. 824, 836, 39 P.3d 308 (2001). Where the
elements of a crime are split between accomplices, all of the participants are guilty of the
crime. See State v. Haack, 88 Wash. App. 423, 427-428, 958 P.2d 1001 (1997).
Mr. Samalia first argues that because he abandoned his purloined property before
pulling a weapon, he was not guilty of robbery under Johnson. While his view of
Johnson is factually accurate, it does not aid him here. In Johnson, a man stole items
from a store, but abandoned them when chased by a security guard. He then used force
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No. 31611-4-III
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to escape from the guard. 155 Wash. 2d at 610. The court ruled that force used after
abandonment of property is not force used to take or retain property under the terms of
the statute. Id. at 611. Johnson did not involve an accomplice. Because Mr. Cliett
retained his stolen package after Mr. Samalia pulled a gun on the pursuers, the evidence
supported the view that Mr. Samalia was guilty as an accomplice to that taking.
To counter this argument, Mr. Samalia contends that the evidence was insufficient
to show that he aided Mr. Cliett because he did not know Cliett had retained the property
since they were out of sight of each other. The facts, however, supported a contrary view
of the evidence. The business owner testified that the two men ran off on the same side
of the truck with one a little ahead of the other. There was no evidence that Cliett
dropped his package or that Samalia had any reason to believe he did. Further, Ms.
Melton testified that Cliett had a package with him when the two men returned to her car.
A jury could infer from this testimony that Mr. Samalia knew that Mr. Cliett still retained
his package when he pulled out his gun. There was no reason for him to believe
otherwise.
Properly viewed, the evidence supported the jury's verdict. It was sufficient.
Jury Instructions
Mr. Samalia argues that the court erred by failing to give his two requested
instructions, resulting in the court's instructions misstating the law. The court's
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No. 31611-4-III
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instructions were proper and allowed the defense to argue its theory of the case. There
was no error.
Long settled standards also govern this argument. Jury instructions are sufficient if
they correctly state the law, are not misleading, and allow the parties to argue their
respective theories of the case. State v. Dana, 73 Wash. 2d 533, 536-537, 439 P.2d 403
(1968). The trial court also is granted broad discretion in determining the wording and
number of jury instructions. Petersen v. State, 100 Wash. 2d 421, 440, 671 P.2d 230 (1983).
Discretion is abused when it is exercised on untenable grounds or for untenable reasons.
State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971).
The elements instruction accurately stated the law of robbery. It read:
To convict the defendant of the crime of First Degree Robbery, each
of the following elements of the crime must be proved beyond a reasonable
doubt:
(1) That on or about December 9, 2011, the defendant or an
accomplice unlawfully took personal property of Vernon Place
and/or UPS in the presence of Vernon Place;
(2) That the defendant or an accomplice intended to commit theft of
the property;
(3) That the taking was against Vernon Place's will by the defendant
or an accomplice's use or threatened use of immediate force,
violence or fear of injury to that person;
(4) That force or fear was used by the defendant or an accomplice to
obtain or retain possession of the property or to prevent or overcome
resistance to the taking;
(5) That in the commission of these acts or in immediate flight
therefrom the defendant or an accomplice
(a) was armed with a deadly weapon; or
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(b) displayed what appeared to be a firearm or other deadly
weapon; and
(6) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 89. The above instruction mirrors the robbery statutes. Cf RCW
9A.56.190 and RCW 9A.56.200. 3
This instruction also allowed Mr. Samalia to argue his theory of the case that
because he abandoned the property prior to pulling out the gun he did not commit
robbery. The instruction's fourth element requires that "force or fear was used ... to
obtain or retain possession of the property or to prevent or overcome resistance to the
taking." CP at 89 (emphasis added). Mr. Samalia was free to use this language to argue
that because he had dropped the box, he was not using force to "retain possession of the
property." Id. In fact, defense counsel made this argument in closing. TP at 621.
Mr. Samalia also proposed an additional instruction that read:
The force used must relate to the taking or retention of the property, either
as force used directly in the taking or retention or as force used to prevent
or overcome resistance "to the taking." Force used merely in an attempt to
escape after abandoning the property is not a robbery.
CP at 72 (emphasis added). The trial court rejected this instruction because the final
sentence could confuse the jury. Specifically, the court believed that due to the
accomplice instruction, the proposed last sentence on abandonment would cause
3Element two contains the nonstatutory element of intent to commit theft. In re
Pers. Restraint of Lavery, 154 Wash. 2d 249, 255, 111 P.3d 837 (2005) (robbery includes
the nonstatutory element of specific intent to steal).
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confusion. Because Mr. Samalia was still able to argue his theory of the case absent this
instruction, the instructions were sufficient and the trial court did not abuse its discretion.
Mr. Samalia's next argument is that the accomplice liability instruction was
improper because it would allow the jury to convict him even ifhe only had the intent to
commit theft. For accomplice liability, the person must have knowledge that his or her
conduct will aid in the commission of the crime. RCW 9A.08.020(3); State v. Roberts,
142 Wash. 2d at 513. In this case, the accomplice liability instruction stated in relevant part:
A person is an accomplice in the commission of a crime if, with
knowledge that it will promote or facilitate the commission of the crime of
First Degree Robbery, he either:
( 1) Solicits, commands, encourages, or requests another person to
commit the crime; or
(2) Aids or agrees to aid another person in planning or committing
the crime.
CP at 82. This instruction also mirrors the accomplice liability statute. See RCW
9A.08.020(3). It accurately stated the law of accomplice liability.
Mr. Samalia argues that this instruction and the to-convict instruction allowed the
jury to convict a person of robbery even if he only intended to commit theft. He
compares this situation with State v. Grendahl, 110 Wash. App. 905, 908, 43 P.3d 76
(2002). The comparison fails because of a critical factual difference between the two
cases.
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In Grendahl this court concluded that identical jury instructions were erroneous
because the defendant, who was driving the get-away car while an accomplice was
stealing a woman's unattended purse, was unaware of the fact that the accomplice
actually used force to accomplish the theft, thereby elevating the crime to robbery. Id. at
906-910. Since the two defendants did not share the same intent, the instructions were
erroneous as to Mr. Grendahl who had agreed to take part only in a theft. Id. at 910-911.
This case, however, is in the opposite fact pattern. Here it was Mr. Samalia whose
actions elevated the planned theft into a robbery. There was no possibility that he
erroneously could be convicted as an accomplice to robbery due to Mr. Cliett acting
beyond the mutually agreed upon theft. Instead, he was the one who used force and
converted the package theft into a robbery.
The court's instructions were correct. There was no error in denying the
defendant's requested instructions because the defense was still able to argue its theory of
the case.
Cross-examination of Ms. Melton
Mr. Samalia next argues that he was deprived of his right to cross-examine Ms.
Melton effectively because he was not permitted to ask her the maximum penalty for the
original charge of first degree robbery. The trial court did not abuse its discretion in this
matter, nor was the defense harmed by the limitation.
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An accused has the right under the Sixth Amendment to the United States
Constitution to confront the witnesses against him. U.S. Const. amend. VI; Crawford v.
Washington, 541 U.S. 36, 42, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). This right,
which applies to the states via the Fourteenth Amendment's Due Process Clause,
necessarily speaks to a defendant's right to cross-examine adverse witnesses. Pointer v.
Texas, 380 U.S. 400, 404-405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). However, the
right to cross-examine witnesses is not absolute; the subject-matter of the cross-
examination is "limited by general considerations of relevance." State v. Darden, 145
Wash. 2d 612, 621, 41 P.3d 1189 (2002) (citing ER 401 and ER 403).
Washington follows a three-pronged approach to determine the limitations of a
defendant's confrontation clause right to cross-examination. Id. at 622. First, the
evidence sought must have at least minimal relevance. Id. Second, if relevant, the
burden is on the State to show that the evidence is "so prejudicial as to disrupt the
fairness of the fact-finding process at trial." Id. Third, the court must balance the State's
interest in excluding prejudicial evidence against the defendant's need for the
information; "only if the State's interest outweighs the defendant's need can otherwise
relevant information be withheld." Id. Ultimately, restrictions on cross-examination are
within the discretion of the trial court. This court reviews for abuse of discretion. State
v. Fisher, 165 Wash. 2d 727, 752, 202 P.3d 937 (2009).
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Bias evidence is generally relevant. State v. Tate, 2 Wash. App. 241, 247, 469 P.2d
999 (1970). Further, a defendant enjoys more latitude to expose the bias of a key
witness. Darden, 145 Wash. 2d at 619. In situations where the accomplice has entered a
plea of guilty, but not yet been sentenced, it is even more important that the trial court
give counsel "great latitude in cross-examination" to ascertain whether the witness
expected favorable treatment as a result of his testimony. Tate, 2 Wash. App. at 247.
Mr. Samalia argues that he should have been able to ask about what sentence Ms.
Melton faced under the original charge in order to expose the jury to her motivations and
biases for testifying. The initial problem with this argument is that the defense never
attempted to ask Ms. Melton what sentence she faced nor did the trial court prohibit him
from doing so. Under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A. RCW, a
felon will be sentenced within a specified sentence range dependent on the seriousness of
the offense and the offender's prior criminal history unless aggravating or mitigating
circumstances exist. RCW 9.94A.505(2)(x), .530(1), .535; see generally State v. Jones,
159 Wash. 2d 231, 236-237, 149 P.3d 636 (2006); State v. Nordby, 106 Wash. 2d 514, 516,
723 P .2d 1117 ( 1986). An exceptional sentence may only exceed the standard range if
the prosecutor provides notice and proves the existence of an aggravating factor. RCW
9.94A.535-.537; State v. Siers, 174 Wash. 2d 269, 277, 274 P.3d 358 (2012). There is no
indication that the prosecutor ever sought an exceptional sentence against any of the
robbery suspects.
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There was no effort to identify the standard range sentence Melton faced for the
first degree robbery charge. Instead of comparing the high end of her range to the actual
sentence she anticipated receiving, thereby showing exactly what she gained from
testifying, defense counsel sought to ask about the statutory maximum sentence facing a
person convicted of first degree robbery. That information simply was not relevant to
Ms. Melton's situation. 4 She did not face a potential maximum sentence.
The information also was potentially prejudicial to both Mr. Samalia and to the
State. Although jurors are told they have no role in punishment decisions, some juror
could be misled by the maximum sentence information and consider it to either the
benefit or detriment of Mr. Samalia when adjudging the case. The potential for
prejudicial misuse of the information was a tenable reason for excluding it.
Exclusion of the maximum sentence also was not prejudicial to Mr. Samalia. He
was allowed to do what he professed he wanted to do--show that Ms. Melton was getting
a good deal. He had her testify to the "twenty-something" days she expected to serve on
4
Prior to the SRA the information would have been relevant. Under the prior
indeterminate sentencing scheme, the court was required to sentence a felon to the
maximum sentence and the parole board would impose a minimum term. After the
minimum term was served, the parole board would then determine ·whether the offender
would be released at some point prior to serving the maximum sentence. See RCW
9.95.001, .010, .040. After enactment of the SRA, the trial judge took on the function of
setting a minimum term for anyone sentenced under the indeterminate sentencing act.
RCW 9.95.011.
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the amended charge and obtained her agreement that the sentence was "almost
infinitesimal by comparison" with the robbery charge. TP at 433. Counsel was then able
to argue that her good deal was a reason to discredit Ms. Melton's testimony. 5 The
defense was not prevented from doing what it wanted to do. As noted in Fisher,
examination of the reasons for a witness's bias is different than examining the facts
underlying those reasons. 165 Wash. 2d at 752-753. The defendant is allowed to get the
reasons for bias into the record, but not the factual basis. Id. at 753. That was done here.
The trial court properly excluded the irrelevant and potentially prejudicial
information. The defense was left with alternative ways of obtaining similar information
and did so. There was no error.
Motion for a New Trial
Mr. Samalia also argues that the trial court erred in denying his motion for a new
trial. Once again the trial court did not abuse its discretion.
We review a trial court's ruling on a motion to declare a mistrial or grant a new
trial for abuse of discretion. E.g., State v. Weber, 99 Wash. 2d 158, 166, 659 P.2d 1102
(1983) (mistrial); State v. Marks, 71 Wash. 2d 295, 302, 427 P.2d 1008 (1967) (new trial).
5 While Ms. Melton did help identify Mr. Samalia as one of the actors in this
criminal drama, she was not the only one to do so. Between the shop owner's testimony,
that of Officer Tarin Smith, the identification card, and the tracking of Mr. Samalia by the
dog, he was tied to the offense.
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"The question is not whether this court would have decided otherwise in the first
instance, but whether the trial judge was justified in reaching his conclusion." State v.
Taylor, 60 Wash. 2d 32, 42, 371 P.2d 617 (1962).
Mr. Samalia argues that the testimony of Officer Taylor vouched for other
witnesses and that the prosecutor committed misconduct in concluding a PowerPoint
presentation during closing argument with a slide that said "GUILTY". In each instance,
the trial court struck the challenged conduct from the record. In ruling on the motion, the
court concluded that its previous actions had adequately addressed the respective
situations. That was a tenable rationale.
With respect to the testimony of Officer Taylor, it was arguable whether the
answer to counsel's question was error. One witness may not vouch for another. E.g.,
State v. Jones, 117 Wash. App. 89, 91, 68 P.3d 1153 (2003). Nonetheless, defense counsel
asked why the officer believed as he did and the officer told him-he relied on fellow
officers who he knew from his own experience were not lying to him. The answer was
offered to answer the question asked, not to bolster the testimony of others. There was no
good reason for asking the officer why he believed as he did, but once the question was
asked, the defense was bound by the answer.
Assuming error, however, this was not such egregious error that the court's
direction to strike the testimony failed to cure the prejudice. It is unlikely that the jury
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was unduly influenced by the non-surprising testimony that an officer relied on
information from other officers and believed it credible.
The issue of prosecutorial misconduct is even clearer. Use of a single slide with
the word "GUILTY" does not amount to misconduct. State v. Walker, 182 Wash. 2d 463,
341 P.3d 976, cert. denied, 135 S. Ct. 2844 (2015). There the court clarified an earlier
decision and determined that mere use of the word "guilty," even in all capital letters,
does not always constitute an improper expression of the prosecutor's personal opinion.
Id. at 480 n.6.
Moreover, the court's decision to strike the slide certainly cured any error arising
from the brief display. Jurors being asked by the prosecutor to find the defendant
"guilty" cannot be surprised when the prosecutor actually uses the word "guilty" in
closing argument. It was not an impermissible expression of personal opinion. It was the
action the prosecutor asked the jury to take after deliberating on the case.
The trial court did not abuse its discretion in denying the motion for a new trial.
Courtroom Closure
Finally, Mr. Samalia argues that the courtroom was improperly closed by a sign
stating that the building would close at 4:00 p.m. This argument is one appellate courts
have addressed on several occasions and is controlled by a decision of the Washington
Supreme Court on virtually identical facts.
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A defendant has a right to public trial. Const. art. I, § 22. This court reviews an
alleged public trial violation de novo. State v. Easterling, 157 Wash. 2d 167, 173-174, 137
P.3d 825 (2006). The defendant has the burden of showing that a courtroom closure
occurred. State v. Koss, 181 Wash. 2d 493, 503, 334 P.3d 1042 (2014).
Here, nothing in records suggests there was a courtroom closure. While the
courthouse normally closed at 4:00 p.m., the trial court continually commented on the
record that it was keeping the courthouse unlocked when trial ran later than 4:00 p.m. to
ensure public access. Mr. Samalia moved to supplement the record in this case with the
record from a reference hearing in State v. Andy, No. 31018-3-III, another Yakima
County case. See Commissioner's Ruling, State v. Samalia, No. 31611-4-III (Wash. Ct.
App. Apr. 17, 2014) (granting motion). There, the trial court made findings of fact
regarding the openness of the Yakima County Courthouse after 4:00 pm in Andy's trial.
The trial court found that in spite of the sign, "members of the public will ... try the door
before walking away." Verbatim Report of Proceedings (May 22, 2013) at 179. Further,
the court found that "no member of the public was barred or prevented from entering the
courthouse and attending the ... trial if they so desired because of the existence of [the
sign]." Id.
Andy's case eventually reached the Washington Supreme Court. The court held
that there was no public trial violation. State v. Andy, 182 Wash. 2d 294, 302, 340 P.3d 840
(2014). Specifically the court relied on the trial court's finding that "the sign did not
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deter any member of the public from accessing the courtroom." Id. While the trial
court's findings in the Andy record are specific to that trial, the general finding that
members of the public will try the door before being deterred by the sign is equally
applicable here. Given that finding and the holding in Andy, these facts are insufficient to
demonstrate that the courtroom was closed. Accordingly, there was no public trial
violation.
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.
I CONCUR:
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FEARING, J. (concurring)- I concur in the affirmation of the first degree robbery
conviction of appellant Adrian Samalia. I write separately because I disagree with the
majority's analysis in two important respects.
Cross-Examination of Stacey Melton
Defense counsel asked the State's cooperative witness, Stacey Melton, at trial:
SCOTT [Defense Counsel]: Ultimately, you were charged with First
Degree Robbery. Were you not?
MELTON: Yes.
SCOTT: You and Adrian Samalia both?
MELTON: Yes.
SCOTT: And do you recall what the penalties for First Degree
Robberies are?
CHEN [State's Counsel]: Objection.
JUDGE: Sustained.
3 Tr. of Proceedings (TP) at 393. Note that defense counsel asked Melton if she
"recalled" the penalties, not what were the penalties. Of course, most witnesses do not
understand the subtleties of questions, such that Stacey Melton may not have answered
the question with a simple yes or no, but, if she recalled, testified to her recollection of
the penalties. Thus, we ask whether the trial court erred in excluding evidence of the
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State v. Samalia
possible penalties, including the maximum penalty, the State's witness faced if she
refused to testify against Adrian Samalia.
The majority writes that the maximum sentence for first degree robbery was
irrelevant to Stacey Melton's "situation" and that she did not face a potential maximum
sentence. Majority at 15. The majority does not disclose any basis for this observation.
We know nothing about Stacey Melton's criminal history. For all we know, the State
would have requested and the trial court would have imposed the highest possible
sentence.
Assuming the majority holds or impliedly holds that the maximum sentence of the
cooperating witness is always irrelevant or always inadmissible, I disagree. No earlier
Washington decision addresses this weighty issue. Cases from foreign jurisdictions
primarily hold such evidence to be relevant and rule a bar of such testimony to require a
new trial. I collate those decisions in the appendix.
ER 401 declares:
"Relevant evidence" means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.
(Emphasis added.) The threshold to admit relevant evidence is very low. State v.
Darden, 145 Wash. 2d 612, 621, 41 P.3d 1189 (2002). Even minimally relevant evidence is
admissible. State v. Darden, 145 Wash. 2d at 621. A defendant enjoys more latitude to
expose the bias of a State's key witness. State v. Darden, 145 Wash. 2d at 619.
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One who faces a life sentence if one does not cooperate with the State has more
reason to collaborate with the State than one who faces a five-year sentence. Therefore,
the precise punishment, including the maximum amount of punishment one originally
encountered before turning State's witness, holds some relevance to one's bias. The
latitude afforded defendant in cross-examining a witness bolsters the admissibility of the
maximum penalty confronting the witness before the agreement with the prosecution.
The majority only tangentially mentions the basis on which the trial court
excluded the evidence of the possible sentence facing Stacey Melton if she refused to
oblige the State. The majority also omits that the trial court ruled the evidence germane.
Contrary to the majority's ruling, the trial court ruled that the evidence was relevant. The
trial court, nonetheless, excluded the evidence based on prejudice to Adrian Samalia, the
State, or both parties. The State charged Stacey Melton, like Adrian Samalia, with first
degree robbery. Thus, the jury would have heard the sentence also faced by Adrian
Samalia. No Washington case weighs the prejudice resulting from the jury hearing the
defendant's sentence range with the inability of the defendant to question the State's
witness about the length of sentence she avoided. Cases from foreign jurisdictions
disagree with one another on this significant question. I include a description of those
decisions in the appendix. Some of those cases base the right to question the State's
witness on her possible sentence on the United States Constitution's confrontation clause.
I would reserve for another day the question of whether the defense may question
the State's collaborating witness as to the maximum sentence or range of sentence faced
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on the charge dismissed by the State in exchange for the witness's testimony regardless
of whether the defendant faces the same charge. We need not answer these questions in
this appeal because of a lack of prejudice to Adrian Samalia in being barred from asking
these precise questions.
In response to other questioning by defense counsel, Stacey Melton testified that
the State had filed a very serious charge against her, that the State would dismiss the very
serious charge for her testimony, that the State would reduce the robbery charge to a
gross misdemeanor of rendering criminal assistance, that the State would permit her to
plead to a charge infinitely less in seriousness, that her sentencing abided her testimony,
that the low sentence depended on her testimony, that she believed the State connected
the lower sentence to her testimony against Adrian Samalia, that she needed to testify
favorably for the State, that the prosecution bestowed her an incredible benefit by her
testifying, and that she would receive approximately a twenty-day sentence that she
already served. In short, defense counsel completed an effective cross-examination.
More importantly, other evidence overwhelmingly supported Adrian Samalia's
conviction. A dog tracked Adrian Samalia as a fleeing suspect. Law enforcement found
Samalia's identification on the backseat of the car. Samalia presented no alibi. He called
no witnesses.
One decision suggests that precluding the questioning of the State's witness as to
the maximum sentence of a conviction she avoided is never harmless. State v. Bennett,
550 So. 2d 201, 205 (La. Ct. App. 1989). Other cases employ a harmless error analysis.
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United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989); Jackson v. State, 37 So. 3d
370 (Fla. Dist. Ct. App. 2010); State v. Vogleson, 275 Ga. 637, 571 S.E.2d 752 (2002). I
know of no reason why a harmless error analysis should be applied to other errors, even
constitutional errors, but not to this error that implicates the constitution's confrontation
clause. Under Washington law, a constitutional error is harmless if the appellate court is
assured beyond a reasonable doubt that the jury verdict is unattributable to the error.
State v. Anderson, 171 Wash. 2d 764, 770, 254 P.3d 815 (2011). This court employs the
"overwhelming untainted evidence" test and looks to the untainted evidence to determine
if it is so overwhelming that it necessarily leads to a finding of guilt. Anderson, 171
Wash. 2d at 770 (quoting State v. Guloy, 104 Wash. 2d 412, 426, 705 P.2d 1182 (1985)). The
untainted evidence against Adrian Samalia is overwhelming.
Adrian Samalia also assigns error to the trial court's refusal to admit his proposed
Exhibit 5 to impeach Stacey Melton. In his assignment, Samalia does not identify the
nature of the exhibit. Presumably, the exhibit is the information filed by the State against
Stacey Melton, which information included the potential sentence for first degree
robbery. Samalia includes no argument in the body of his brief as to why exclusion of
the exhibit constituted error. This court does not review issues not argued, briefed, or
supported with citation to authority. RAP 10.3(a); Valente v. Bailey, 74 Wash. 2d 857, 858,
447 P.2d 589 (1968); Avellaneda v. State, 167 Wash. App. 474, 485 n.5, 273 P.3d 477
(2012).
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Slide of Guilt
The majority writes that a single slide with the word "GUILTY" does not amount
to prosecutorial misconduct. The majority cites State v. Walker, 182 Wash. 2d 463, 341
P.3d 976, cert. denied, 135 S. Ct. 2844 (2015) for this proposition. Walker, like other
cases preceding it, approved the use of visual aids during closing statements. The Walker
court did not hold or even suggest that one slide using the word "GUILTY" does not
constitute misconduct.
Fearini,i
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APPENDIX
Federal Cases
In United States v. Scheetz, 293 F.3d 175 (4th Cir. 2002), the trial court allowed
defense counsel to ask cooperating government witnesses about, and the witnesses
testified to, the maximum and minimum sentences they faced before reaching an
agreement with the government. The defendant appealed because the trial court
disallowed questioning about sentencing guidelines. The appellate court affirmed, in
part, because of the testimony concerning the maximum and minimum sentence.
In United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989), the defendant
complained about the trial court forbidding of defense counsel from questioning the
government's witness about the details of her plea bargain. The reviewing court
concluded the limitation was error, despite the trial court's concern that the jury would
speculate as to whether the defendant faced a similar sentence. The court noted that the
details of the plea are relevant to a jury assessing the credibility of the witness. The
court, nonetheless, held the error to be harmless because the cooperating witness's
testimony did little to incriminate the defendant.
In United States v. Dorta, 783 F .2d 1179 (4th Cir. 1986), the defendants argued
that the trial court erred in refusing to allow their counsel to cross-examine the
government's chief witness concerning his belief as to what his maximum sentence could
have been had he not cooperated with the government. The appeals court recognized that
a witness's understanding of what benefits he will receive as a result of his cooperation
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No. 31611-4-111
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with the government is relevant and that the defendant is constitutionally entitled to
explore this subject during cross-examination. The court affirmed the convictions,
nonetheless, because defense counsel thoroughly examined the witness regarding his
understanding of the use immunity he was granted for his grand jury testimony and his
understanding of the implications of his plea agreement. The decision does not disclose
whether the witness testified to the maximum sentence he faced.
State Cases
In Jackson v. State, 37 So. 3d 370 (Fla. Dist. Ct. App. 2010), the trial court
precluded defense counsel from questioning State witnesses as to the maximum and
minimum sentences they avoided by testifying against the defendant. The reviewing
court agreed with the defendant that the trial court committed error. The trial court
affirmed the conviction, however, because the error was harmless.
In State v. Vogleson, 275 Ga. 637, 571 S.E.2d 752 (2002), the jury heard that the
State's witness reached an agreement with the State to testify against the defendant in
exchange for the State recommending a sentence of ten years. The trial court precluded,
however, defense counsel from asking the witness about his understanding of the
disparity between the sentence the State would recommend in exchange for his
cooperation and the sentence he would have received without that cooperation. The
Georgia Court of Appeals reversed and the Supreme Court affirmed the Court of
Appeals. The State argued that such evidence was prejudicial because the jury might
conclude that the defendant would receive the same sentence the witness faced without
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cooperation. The Peach State Supreme Court answered that this problem could be
addressed by the trial court giving a limiting instruction. The state high court held that
the defendant's confrontation clause rights were infringed and, after reviewing other
evidence, the court concluded the error was harmful.
In State v. Brown, 303 S.C. 169, 399 S.E.2d 593 (1991), the trial court sustained
the State's objection to defense counsel asking the State's witness as to the mandatory
length of punishment for the dropped charge. The reviewing court, relying on the United
States Constitution's confrontation clause, held that the trial court abused its discretion in
limiting cross-examination. The reviewing court remanded the case for a new trial. The
court held the jury should be free to weigh the sentence the witness would have received
with the sentence actually received. The witness's evidence was crucial to the
prosecution. The reviewing court rejected the State's argument that the jury would have
learned the defendant's own potential sentence if convicted. Defendant's right to a
meaningful cross-examination outweighed the State's interest in shielding evidence of the
defendant's prospective sentence from the jury.
In State v. Bennett, 550 So. 2d 201 (La. Ct. App. 1989), the reviewing court
reversed the defendant's conviction for solicitation of murder. The court held that the
trial court erred in refusing the defendant the opportunity to ask the collaborating witness
as to the maximum sentence he could have received if he failed to cooperate with the
State. The court suggested that impermissibly curtailing cross-examination could never
be harmless.
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In Meyer v. State, 498 So. 2d 554 (Fla. Dist. Ct. App. 1986), the reviewing court
upheld the trial court's barring of questioning of the State's witness as to the maximum
and minimum sentence he faced with his deal with the State. The court considered
sufficient the jury's hearing that the witness received a reduced sentence in exchange for
testifying. Meyer v. State may conflict with Jackson v. State.
In State v. Morales, 120 Ariz. 517, 587 P.2d 236 (1978), the reviewing court
reversed the defendant's conviction for first degree murder. The court held that the trial
court committed reversible error in precluding defense counsel from attacking the
credibility of a juvenile witness who had participated in the torture of the victim by
showing the punishment the juvenile might have received had he not agreed to testify
against the defendant. The trial court precluded the testimony on the ground that the jury
would hear the possible sentence faced by the defendant. The reviewing court held that
this factor did not outweigh the defendant's right to examine the witness as to the penalty
he would have faced if he had not agreed to testify.
In State v. Larrabee, 3 77 A.2d 463 (Me. 1977), the reviewing court noted that
defense counsel should be free to question the State's witness as to the existence of an
agreement and the extent of the benefits the witness will likely obtain by cooperative
testimony. Nevertheless, the court refused to reverse the trial court because the State
charged the defendant with the same crime that the witness avoided with the agreement.
The rule that the jury should not know the sentence that the defendant faced prevailed.
The court also rejected the salutary effect of a limiting instruction.
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In State v. Alston, 17 N.C. App. 712, 195 S.E.2d 314 (1973), the trial judge barred
questioning of the State's witness as to the maximum sentence the witness confronted but
for his cooperation with the State. The reviewing court held the restriction to violate
defendant's right to show bias of a witness and ordered a new trial.
11