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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, No. 83387-1-I
Respondent, ORDER GRANTING MOTION v. FOR RECONSIDERATION, WITHDRAWING OPINION, JUSTIN DOMINIC BELL, AND SUBSTITUTING OPINION
Appellant.
Respondent State of Washington moved for reconsideration of the opinion
filed on January 30, 2023. Appellant Justin Bell filed a response. The court has
determined that respondent’s motion for reconsideration should be granted, the
opinion should be withdrawn, and a substitute opinion be filed.
Now, therefore, it is hereby
ORDERED that respondent’s motion for reconsideration is granted. It is
further
ORDERED that the opinion filed on January 30, 2023, is withdrawn and a
substitute published opinion be filed. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Respondent, DIVISION ONE v.
JUSTIN DOMINIC BELL, PUBLISHED OPINION
SMITH, C.J. — Justin Bell was charged with first degree assault and drive-
by shooting for an attack on his coworker, Freddie Brooks, that occurred shortly
after a fistfight between the two. During jury selection, the court denied Bell’s
request that jurors wear clear face shields rather than nontransparent face masks
covering their noses and mouths. Bell contends that this denial violated his right
to select an impartial jury. He also asserts that his conviction on both counts
violates double jeopardy and Washington’s sentencing laws because his charges
were based on one underlying act. He raises sufficiency of the evidence and
confrontation clause challenges in his statement of additional grounds. Finding
no error, we affirm.
FACTS
Justin Bell shot Freddie Brooks several times on December 14, 2017.
Earlier that day, Brooks had argued with Bell, a coworker, over a carpooling
payment Brooks owed Bell. As reported by another coworker, their argument For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/2
escalated and “g[ot] kind of pushy.” They were told to leave their employer’s
building and they did, exchanging blows in the parking lot. When the fight ended,
the two went their separate ways. Brooks headed to a corner store and then a
bus stop with his girlfriend, Briann Jenkins, while Bell went toward his car.
As Jenkins and Brooks crossed the street to the bus stop, Jenkins heard
gunshots, quickly ran toward a nearby Value Village store, and hid behind a car.
Witnesses later described hearing six to eight shots. When Jenkins looked back,
Brooks was crawling on the ground, hit by several bullets. A passing car
transported him to the hospital, where he was treated for several potentially life-
threatening bullet wounds. He recovered successfully.
Numerous individuals testified to seeing the shooting and the events
surrounding it at trial. One witness, a passenger in a nearby car, testified that he
heard gunfire while stopped at a light. Looking in the direction of the gunshots,
he saw a black four-door sedan driving erratically, swerving through traffic and
cutting off other cars.1 This witness called the police to provide updates as his
girlfriend followed the car. A recording of his 911 call in which he describes the
first three letters of the license plate, BTB or BGB, was admitted at trial. Another
witness who observed the license plate wrote down the last four numbers: 9767.
Bell’s registered vehicle was a 2017 Hyundai Elantra with the license plate
BGB9767.
1 At trial, the witness testified, “I said Saturn at the time. Maybe a Kia. I can’t remember.”
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/3
Eyewitnesses who managed to get a look at the shooter were able to
match his age and race roughly with Bell’s. One witness, peering into the sedan
from less than a car-length away, managed to get a quick glimpse and confirmed
his age and race. Another witness was able only to get a sense of his race.
Other evidence confirmed the origin of the gunshots. Most significantly,
the State introduced video footage depicting the shooting and Brooks’s collapse
onto the ground.2 This footage was then supported by eyewitness and forensic
testimony and evidence. One witness, the passenger in a car located behind a
vehicle he identified as a dark-colored Kia Sorento, saw the shooter’s hand
stretching out of the vehicle holding a gun. Still another witness, perhaps 10
or 15 feet away from the shooter’s car, saw gunfire come from the driver’s side
window. The police used lasers to reconstruct the flight path of the fired bullets
and concluded that they originated in the street.
Bell owned a firearm, a 9 mm caliber Kahr. Casings and bullet holes
found at the scene of the shooting matched this caliber. In February 2018, Bell
called the Marysville Police Department to report this firearm stolen. According
to the police officer who took the call, Bell said he had reached out “in case
something was to be done with that pistol” and demonstrated concern that “if a
crime [occurred] or the pistol was used inappropriately that it could be associated
with him.”
2 This footage was not included in the record on appeal, and we must
therefore resort to descriptions from trial of what it depicts.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/4
The State initially charged Bell with first degree assault. It later added a
count of drive-by shooting. During jury selection, Bell requested that jurors not
wear face masks that obstructed their noses and mouths, a request the trial court
denied. After hearing testimony, the jury convicted Bell of first degree assault
with a firearm enhancement and drive-by shooting. The court sentenced Bell to
171 months in prison, the low end of the standard range, using an offender score
that included both crimes.
Bell appeals.3 ANALYSIS Court’s Ruling Concerning Face Masks
Bell first challenges the trial court’s denial of his request that potential
jurors wear face shields rather than face masks during jury selection, a request
made so that potential jurors’ demeanor would be more apparent during
questioning. He contends that the trial court’s ruling violated his right to an
impartial jury. We are not persuaded.
1. The Purposes and Manner of Jury Selection
The Washington and federal constitutions guarantee a criminal
defendant’s right to an impartial jury. WASH. CONST. art. I, § 22;4 U.S. CONST.
amend. VI.5 To enforce this right, potential jurors are removed “for cause” where
3 The State also filed a notice of crossappeal. It, however, assigns no error and does no more than respond to Bell’s arguments in its briefing on appeal. 4 “In criminal prosecutions the accused shall have the right . . . to have a
speedy public trial by an impartial jury.” 5 “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury.” This protection is applicable to the
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/5
the court or parties detect bias. RCW 4.44.190. Voir dire, the part of jury
selection wherein the parties ask questions and engage in discussion with
potential jurors to draw out potential bias, is central to securing the right to an
impartial jury. State v. Momah, 167 Wn.2d 140, 152, 217 P.3d 321 (2009). But
voir dire is more than just a question and answer session; and the interactions
that inform whether the parties request a potential juror’s disqualification for
cause—and whether the court grants that request—are more than purely verbal.
Instead, the parties and the court rely on all the modes by which one person may
assess another’s credibility, including their demeanor. Uttecht v. Brown, 551
U.S. 1, 2, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 (2007); see also Reynolds v.
United States, 98 U.S. 145, 156-57, 25 L. Ed. 244 (1878) (“[T]he manner of a
juror while testifying is oftentimes more indicative of the real character of [their]
opinion than [their] words.”).
Decisions by the trial court about whether to excuse a juror are therefore
reviewed for an abuse of discretion by appellate courts, “in part because a
transcript cannot fully reflect” all the information conveyed—intentionally or
inadvertently—by jurors during voir dire. Brown, 551 U.S. at 17-18 (explaining
appellate courts’ deference to trial courts concerning jury selection). A trial court
abuses its discretion if its decision “adopts a view that no reasonable person
would take.” State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012).
states via the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 157- 58, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/6
Similarly, the trial courts are vested with “broad discretion” in deciding the
manner of voir dire. State v. Brady, 116 Wn. App. 143, 146, 64 P.3d 1258
(2003); see also RCW 2.28.150 (“[I]f the course of proceeding is not specifically
pointed out by statute, any suitable process or mode of proceeding may be
adopted which may appear most conformable to the spirit of the laws.”). The
courts’ “discretion is limited only by the need to assure a fair trial by an impartial
jury.” Brady, 116 Wn. App. at 147. The scope of voir dire should be
“coextensive with its purpose, . . . ‘to enable the parties to learn the state of mind
of the prospective jurors.’ ” State v. Frederiksen, 40 Wn. App. 749, 752, 700
P.2d 369 (1985) (quoting State v. Laureano, 101 Wn.2d 745, 758, 682 P.2d 889
(1984)).
The trial courts’ discretion over the manner of jury selection exists in a
number of forms. A trial court may, for instance, where a certain line of
examination is not calculated to uncover bias, limit the parties’ questioning. State
v. Bokien, 14 Wash. 403, 410, 44 P. 889 (1896). It may, where other
constitutional rights are not at issue, conduct voir dire away from the public view
to permit jurors the privacy to more easily express their opinions. See Momah,
167 Wn.2d at 152-53 (addressing conflicts between right to a public trial and right
to an impartial jury, and allowing that circumstances may require closure in the
name of impartiality). It may also, as the case demands, allot more or less time
for voir dire. See Brady, 116 Wn. App. at 147 (court in certain circumstances
may “reasonably reduc[e]” amount of time promised for questioning). But this
discretion is not boundless. In Brady, to give one example, the trial court abused
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/7
its discretion when it promised counsel a certain amount of time for voir dire,
counsel prepared to ask certain sensitive questions later in that time, and the
court shortened the available time without allowing the attorneys an opportunity
to adjust to that change. 116 Wn. App. at 147-48.
2. Jury Selection During the Pandemic
Starting at the beginning of the COVID-196 pandemic, Washington courts
adopted a variety of strategies to ensure that trial could continue safely. The
Washington State Supreme Court, in an order issued June 18, 2020, required
courts to “conduct all [jury trial] proceedings consistent with the most protective
applicable public health guidance in their jurisdiction.” Ord. re: Modification of
Jury Trial Proc., Statewide Response by Washington State Courts to the COVID-
19 Public Health Emergency, No. 25700-B-631, at 3 (Wash. June 18, 2020).7 It
also ordered courts to inform jurors of steps the court would take to combat
spread of the virus, including “face masking.” Ord. re: Modification of Jury Trial
Proc. at 2-3. It explicitly permitted dramatic changes to the usual voir dire
procedures, changes that include remote jury selection, stating: The use of remote technology in jury selection, including use of video for voir dire in criminal and civil trials, is encouraged to reduce the risk of coronavirus exposure. Any video or telephonic proceedings must be conducted consistent with the constitutional rights of the parties and preserve constitutional public access. Authorization for video-conference proceedings under CrR 3.4(d)(1)
6 COVID-19 is the World Health Organization’s official name for
“coronavirus disease 2019,” a severe, highly contagious respiratory illness that quickly spread throughout the world after being discovered in December 2019. 7 The order exists online at https://www.courts.wa.gov/content/
publicUpload/Supreme%20Court%20Orders/Jury%20Resumption%20Order%20 061820.pdf [https://perma.cc/S5YJ-BWPR].
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/8
. . . is expanded to include jury selection, though the requirement that all participants be able to simultaneously see, hear and speak to one another does not require that all potential jurors be able to simultaneously see one another.
Ord. re: Modification of Jury Trial Proc. at 3.
Snohomish County Superior Court promulgated a similar order.
Emergency Ord. #15 re: Ct. Operations, No. 2021-7009-31A, In re Response by
Snohomish County Superior Court to the Public Health Emergency in Snohomish
County and the State of Washington (Snohomish County Super. Ct., Wash.
Aug. 10, 2021).8 It required “any person” entering a Snohomish County Superior
Court courtroom to wear a mask covering their mouth and nostrils. Emergency
Ord. #15 re: Ct. Operations at 3. It permitted “[a] defendant proceeding to jury
trial [to] express his or her preference either for Zoom[9] or in-person jury
selection.” Emergency Ord. #15 re: Ct. Operations at 18. It further stated: Appropriate cloth, surgical, or N-95/KN-95 masks shall be worn by all persons in the courtroom. The Court may require that jurors wear N-95/KN-95. The Court may permit jurors, when being questioned during jury selection, to wear a clear mask instead of an otherwise appropriate mask.
Emergency Ord. #15 re: Ct. Operations at 19.
In addition to those orders issued by the courts and specifically directed at
court proceedings, the state executive used its emergency powers to require face
masking in various settings. At the time of trial in this case in October 2021, an
8 The order exists online at https://www.courts.wa.gov/content/public
Upload/COVID19_Snohomish/Snohomish%20County%20Superior%20Emergen cy%20Order%2015%20Superior%20Court%20Operations%20August%2010,%2 02021.pdf [https://perma.cc/2QQB-N8KN]. 9 Zoom is a web conferencing platform that is used for audio and/or video
conferencing.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/9
order from the secretary of the Washington Department of Health, Order 20-03.6,
was in effect. Wash. Sec’y of Health, Ord. No. 20-03.6 (Wash. Sept. 24, 2021),
https://mrsc.org/getmedia/5862c24f-a144-4f14-9045-043b9bf9c0dd/
Secretary_of_Health_Order_20-03-6_Statewide_Face_Coverings.pdf
[https://perma.cc/B52A-8AVG].10 That order required “[e]very person in
Washington State [to] wear a face covering . . . when they are in a place where
any person from outside their household is present.” Ord. No. 20-03.6, at 3. It
allowed for a number of exemptions, such as while working alone indoors, while
outdoors, while engaging in certain types of performance, while eating or
drinking, or while engaging in a “transient activity” that required “temporary and
very brief” removal of the mask. Ord. No. 20-03.6, at 3-4. None of those
exemptions appears to have applied to jury service.
10 It does not appear that either the Department of Health or the
Governor’s Office maintains these orders online; only some are accessible from official sources. However, the Municipal Research and Services Center, a nonprofit organization devoted to providing resources to local governments in Washington, has collected all permutations of the order at https://mrsc.org/Home/Explore-Topics/Public-Safety/Emergency-Services/Public- Health-Emergencies/Coronavirus-State-Proclamations-and-Guidance.aspx. This collection appears reliable. In particular, its copy of No. 20-03.7 matches the versions of that document that are available from official sources. Compare Wash. Sec'y of Health, Ord. No. 20-03.7 (Wash. Feb. 16, 2022), https://mrsc.org/getmedia/010ed3ae-ace0-46f2-972c-29e2adb9b3d2/Secretary- of-Healt-Order-20-03-7-Amended-Statewide-Face-Covering-2022-02-16.pdf.aspx [https://perma.cc/B56N-A9RK], with Wash. Sec'y of Health, Ord. No. 20-03.7 (Wash. Feb. 16, 2022), https://www.governor.wa.gov/sites/default/files /proclamations/WA_DOH_Secretary_of_Health_Order_20- 03.7_Amended_Statewide_Face_Covering_2022.02.16.pdf [https://perma.cc/XVJ6-EXVS].
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/10
3. Constitutionality of Masked Jurors During the Pandemic
Washington was not alone in taking these steps to ensure the safety of
jurors, court staff, counsel, parties, and the general public during a global health
emergency. Many other jurisdictions did the same. Some of those jurisdictions
have seen challenges to their pandemic-induced jury selection procedures
similar to the one Bell brings. Courts have uniformly rejected these challenges.
Most cases rejecting the argument that requiring jurors to wear face
masks during voir dire violates the defendant’s right to an impartial jury come
from federal district courts.11 Only one federal circuit court appears to have
addressed the issue so far, also upholding face masking during voir dire.12 A
number of state courts have also considered and rejected the issue.13 No
11 See United States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 WL
4917733, at *7-8 (M.D. Ga. Aug. 21, 2020) (court order); United States v. Trimarco, No. 17-CR-583 (JMA), 2020 WL 5211051, at *5 (E.D.N.Y. Sept. 1, 2020) (court order); United States v. James, No. CR-19-08019-001-PCT-DLR, 2020 WL 6081501, at *3 (D. Ariz. Oct. 15, 2020) (court order); United States v. Robertson, No. 17-CR-02949-MV-1, 2020 WL 6701874, at *2 (D.N.M. Nov. 13, 2020) (memorandum opinion and court order); United States v. Tagliaferro, 531 F. Supp. 3d 844, 851 (S.D.N.Y. 2021); United States v. Thompson, 543 F. Supp. 3d 1156, 1164-65 (D.N.M. 2021); United States v. Watkins, 18-CR-32-A, 2021 WL 3732298, at *7 (W.D.N.Y. Aug. 24, 2021) (decision and court order); United States v. Maynard, No. 2:21-CR-00065, 2021 WL 5139514, at *2 (S.D. W. Va. Nov. 3, 2021) (memorandum opinion and court order); United States v. Schwartz, No. 19-20451, 2021 WL 5283948, at *3 (E.D. Mich. Nov. 12, 2021) (opinion and court order); United States v. Davis, No. 18-cr-20085, 2021 WL 5989060, at *3 (E.D. Mich. Dec. 16, 2021) (court order). 12 United States v. Ayala-Vieyra, No. 21-1177, 2022 WL 190756, at *5 (6th
Cir. Jan. 21, 2022); United States v. Smith, No. 21-5432, 2021 WL 5567267, at *2 (6th Cir. Nov. 29, 2021). 13 Commonwealth v. Delmonico, 251 A.3d 829, 842 (Pa. Super. Ct.),
appeal denied, 265 A.3d 1278 (Pa. 2021); Cooper v. State, 2022 Ark. App. 25, at 6, 638 S.W.3d 872 (2022); Collins v. Nizzi, No. 354510 (Mich. Ct. App. Jan. 20, 2022) (unpublished), https://www.courts.michigan.gov/4b0259/siteassets
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/11
Washington court has yet addressed it.14
Several notable patterns emerge from the various courts’ treatment of this
issue. First, appellate courts reviewing trial courts’ decisions to permit potential
jurors to wear masks apply an abuse of discretion standard. United States v.
Ayala-Vieyra, No. 21-1177, 2022 WL 190756, at *5 (6th Cir. 2022) (unpublished);
Commonwealth v. Delmonico, 251 A.3d 829, 842 (Pa. Super. Ct. ), appeal
denied, 265 A.3d 1278 (Pa. 2021); Cooper v. State, 2022 Ark. App. 25, at 6, 638
S.W.3d 872 (2022); Gootee v. State, No. 119, slip op. at 23-24 (Md. Ct. Spec.
App. Mar. 25, 2022) (unpublished), https://mdcourts.gov/sites/default/files
/unreported-opinions/0119s21.pdf [https://perma.cc/YGG3-Q6FD], cert.
denied, 479 Md. 465 (2022). This matches the appellate courts’ typical
deference to trial court decisions concerning the manner of jury selection,
described above, and we follow suit.
/case-documents/uploads/opinions/final/coa/20220120_c354510_51_354510. opn.pdf [https://perma.cc/9WHM-2LPE]; Gootee v. State, No. 119, slip op. (Md. Ct. Spec. App. Mar. 25, 2022) (unpublished), https://mdcourts.gov/sites/default/ files/unreported-opinions/0119s21.pdf [https://perma.cc/YGG3-Q6FD], cert. denied, 479 Md. 465 (2022). 14 But see State v. Osborne, No. 37779-2-III, slip op. (Wash. Ct. App. Jan.
27, 2022) (unpublished) (declining to consider issue because not sufficiently briefed), https://www.courts.wa.gov/opinions/pdf/377792_unp.pdf; State v. Dean, No. 82366-3-I, slip op. at 3 n.2 (Wash. Ct. App. Aug. 8, 2022) (unpublished) (“Dean also stated he had difficulty hearing and strained to hear people talking through masks, and his attorney also was concerned about how wearing a mask prevented him from fully using his ‘toolbox as it were.’ Dean does not raise these issues on appeal."), https://www.courts.wa.gov/opinions/pdf/ 823663.pdf. See GR 14.1(c) (“Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.”).
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/12
Second, these cases conclude that the parties’ inability to see a juror’s
mouth and nose deprives them of access to only a small part of their demeanor.
They focus on the observation that “[d]emeanor includes the language of the
entire body,” and that other aspects of voir dire, such as questionnaires and
questioning, permit gathering “sufficient information to detect bias.” United
States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 WL 4917733, at *7-8 (M.D. Ga.
Aug. 21, 2020) (court order); see also United States v. Tagliaferro, 531 F. Supp.
3d 844, 851 (S.D.N.Y. 2021) (defendant is “still free to examine and assess juror
credibility in all critical aspects besides the few concealed by the wearing of a
mask”); United States v. Trimarco, No. 17-CR-583 (JMA), 2020 WL 5211051, at
*5 (E.D.N.Y. Sept. 1, 2020) (court order) (“Being able to see jurors’ noses and
mouths ‘is not essential’ for assessing credibility.”). At least one court has
suggested that the potential difficulty caused by face masking has been partially
mitigated over time because “people have become accustomed to conversing
with masks during the past year and a half.” United States v. Maynard, No. 2:21-
CR-00065, 2021 WL 5139514, at *2 (S.D. W. Va. Nov. 3, 2021) (memorandum
opinion and court order).
Finally, while acknowledging the necessity that the parties be able to
ascertain bias, courts emphasize the countervailing need to provide for safety of
all participants in the midst of a pandemic. United States v. Thompson, 543 F.
Supp. 3d 1156, 1164 (D.N.M. 2021) (the defendant’s “ability to ask questions
during voir dire and to see the upper half of prospective jurors’ faces is enough to
satisfy his constitutional rights during jury selection, at least during an ongoing
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/13
global pandemic”); United States v. Robertson, No. 17-CR-02949-MV-1, 2020
WL 6701874, at *2 (D.N.M. Nov. 13, 2020) (memorandum opinion and court
order) (seeing faces and asking questions enough, “at least in the middle of a
global pandemic”); United States v. Smith, No. 21-5432, 2021 WL 5567267, at *2
(6th Cir. Nov. 29, 2021) (trial courts have “inherent authority” and “ ‘grave
responsibility’ ” to ensure safety of trial participants (quoting Morgan v. Bunnell,
24 F.3d 49, 51 (9th Cir. 1994)).
4. Application to Bell’s Jury Selection
Here, we conclude that the trial court did not abuse its discretion when it
denied Bell’s motion. It did not adopt procedures that no reasonable person
could support.
The trial court was responsive to Bell’s concerns throughout the selection
process. Per the Snohomish County emergency order, Bell had the option to
conduct voir dire online if he wished, which would have permitted access to the
potential jurors’ faces, albeit at the cost of some of their body language. He did
not take advantage of this option, instead requesting that jurors wear face
shields. The court denied his request, saying, “[T]his is a safety issue as far as
I’m concerned.” But it also, in response to this and other worries raised by Bell’s
attorney, indicated a willingness to offer more time for jury selection than would
otherwise have been allotted.15 The court, at the request of defense counsel,
ultimately permitted 30 minutes of questioning for each, rather small, batch of 15
15 The trial court stated, “In my experience, if I give you more time, you
can explore every issue that you need to explore adequately.”
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/14
potential jurors, and again offered to extend that time if needed. But no extra
time was necessary; instead, during discussion with one batch of potential jurors,
defense counsel did not even use all of the time initially allotted.
Even under normal circumstances, without a global contagion and the
face masking it requires, significant variations exist in trial court jury selection.
Some courtrooms place counsel and parties farther away from juries or at an
angle, less able to see the nuances of their expression or hear the subtleties of
their inflection. Some jurors are more or less hidden within jury boxes. Time for
questioning and availability of questionnaires differ courtroom to courtroom and
case to case.
These circumstances, however, were not normal. The Washington State
courts’ responsibilities to jurors (and others)—who reasonably feared for their
safety—were far graver than usual. And the trial court was acting under the
umbrella of orders from the Washington State and county courts and the state
executive that aimed not only to protect the rights and health of the individuals
involved in particular proceedings but also to avoid any possible spread of the
contagion beyond the participants. The trial court’s decision could have resulted
in adverse health outcomes both in and out of the courtroom. By eroding trust of
both court employees and the greater public in the judiciary’s safety protocols,
this could have hampered the judiciary’s ability to function at all during the
pandemic.
Here, the trial court’s decision to require potential jurors to wear face
masks may have deprived Bell of some portion of his ability to assess their
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/15
demeanor. But jurors’ discomfort at being forcibly unmasked in a crowded room
around a group of strangers in the midst of a pandemic may have also affected
their demeanor and impeded accurate determination of their mood and
credibility.16 And their tone of voice, body language, eyes, and other aspects of
their demeanor remained as accessible as they normally would have been.
Judging credibility in such situations is inherently multivariable; some variables in
the jury selection process may inhibit counsel’s ability to determine credibility,
while others may improve it. It is for this reason that the trial courts’ knowledge
of their courtroom, parties, jurors, and situation generally provides them with the
best opportunity to assess matters, and this is why they are given discretion in
the manner of jury selection.
The trial court here, recognizing the departure from standard procedures
face masking entailed, made sure to accommodate the parties’ concerns. In
particular, it allowed more time for questioning, counterbalancing concerns about
inability to assess demeanor. We therefore hold that the trial court did not abuse
its discretion when, during a pandemic, it required jurors to wear face masks
during jury selection.
5. Application to Bell’s Trial
Bell contends that his right to an impartial jury was violated not only by the
trial court’s requirement that jurors wear face masks during selection, but also
16 It is not only jurors who are concerned for their own health, of course, or
for others’ health. Counsel often come to court masked out of a concern for their own and others’ safety even at the appellate level, where there are typically far fewer people in a courtroom.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/16
during trial. But his motion before the trial court focused exclusively on jurors
wearing face masks during jury selection. Any argument about the
constitutionality of jurors remaining masked at trial was therefore not properly
preserved for appeal, which usually precludes our consideration. See
RAP 2.5(a) (“The appellate court may refuse to review any claim of error which
was not raised in the trial court.”).
RAP 2.5(a) does allow argument about unpreserved issues where the
issues are “manifest error affecting a constitutional right.” But the appealing
defendant has the initial burden of showing that the error was of a constitutional
dimension. State v. Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011).
The right to an impartial jury, however, is not typically implicated unless a
biased juror was actually seated. United States v. Martinez-Salazar, 528 U.S.
304, 316, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000). Bell does not even assert
that one was. He does not explicitly address the issue of preservation at any
point, and does not cite to cases that establish a relevant constitutional right that
would ensure him, or his counsel, a view of jurors’ (as opposed to witnesses’)
noses and mouths at trial. Instead, Bell contends that inability to fully access
jurors’ demeanor prohibits counsel from tailoring their arguments to jurors’
“apparent perceptions of the evidence, of the State’s closing argument, and his
or her own closing argument.” And he refers to RCW 2.36.110, which requires
removal of seated jurors who manifested unfitness to serve during trial. But this
is not enough to meet his initial burden under RAP 2.5(a), and as a result, we do
not consider this issue.
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Double Jeopardy
Bell next contends that his conviction for both assault in the first degree
with a firearm enhancement and drive-by shooting is barred by his constitutional
protections against double jeopardy. We disagree.
The Washington and federal constitutions both prohibit the entry of
multiple convictions for the same offense. State v. Womac, 160 Wn.2d 643, 650,
160 P.3d 40 (2007); see also W ASH. CONST. art. I, § 9;17 U.S. CONST. amend. V.18
To determine whether a defendant’s double jeopardy protections have been
violated, Washington applies the “same evidence” rule, asking if they are the
same in fact and in law. Womac, 160 Wn.2d at 652. “[I]f each offense includes
an element not included in the other and requires proof of a fact the other does
not,” double jeopardy is not offended. State v. Harris, 167 Wn. App. 340, 352,
272 P.3d 299 (2012). Because double jeopardy claims raise issues of law, they
are reviewed de novo on appeal. Womac, 160 Wn.2d at 649.
The two crimes of which Bell was convicted contain distinct elements.
RCW 9A.36.011(1)(a) creates the crime of assault in the first degree, which is
committed when a person “with intent to inflict great bodily harm . . . [a]ssaults
another with a firearm or any deadly weapon.” RCW 9A.36.045(1) creates the
crime of drive-by shooting, which is committed when a person “recklessly
discharges a firearm . . . in a manner which creates a substantial risk of death or
17 “No person shall be compelled in any criminal case to give evidence
against himself, or be twice put in jeopardy for the same offense.” 18 “No person shall . . . be subject for the same offense to be twice put in
jeopardy of life or limb.”
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serious physical injury to another person and the discharge is . . . from a motor
vehicle.” Conviction of assault in the first degree requires intent to inflict great
bodily harm. Conviction of drive-by shooting requires discharge of a firearm from
a motor vehicle. Each of these elements is present in only one of Bell’s charged
crimes. As a result, the two offenses are not the same in law.
Nor are the offenses the same in fact, for much the same reasons. Proof
that Bell committed drive-by shooting required proof that he discharged his
firearm from within a car. This proof would not have been required to show
assault in the first degree, which does not have such specific requirements for
the manner of the attack. On the other hand, his conviction of assault in the first
degree required proof that he intended to inflict great bodily harm on Brooks.
Such proof would not have been required to show drive-by shooting, which
requires only a reckless discharge.
We therefore conclude that double jeopardy does not bar Bell’s conviction
for both drive-by shooting and assault in the first degree.
Same Criminal Conduct
Bell makes a second argument that his actions cannot support his two
convictions, this time under statute rather than the constitution. He asserts that
his two crimes concerned the same criminal conduct, a term of art used in
Washington’s sentencing scheme, and that the trial court therefore lacked the
statutory authority to convict him as it did. Relatedly, Bell asserts that his
counsel was ineffective for failing to argue the same criminal conduct issue at the
trial court. We conclude that Bell did not preserve this issue for our direct
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/19
consideration because he affirmatively agreed to his offender score. But we
reach it nonetheless by way of his ineffective assistance of counsel claim. We
conclude that the court did not err by implicitly concluding that his offenses were
not the same criminal conduct. Because no objection would have been
sustained, his counsel was effective.
Washington’s sentencing act determines the range of possible sentences
the trial court may impose by considering both the seriousness of the crime
involved and the defendant’s criminal history. RCW 9.94A.530. The defendant’s
criminal history is accounted for through the use of an “offender score” calculated
by assigning numerical values to each prior crime and adding them together;
more serious crimes carry higher values. RCW 9.94A.525. “[W]henever a
person is to be sentenced for two or more current offenses, the sentence range
for each current offense [is] determined by using all other current and prior
convictions as if they were prior convictions for the purpose of the offender
score.” RCW 9.94A.589(1)(a).
Crimes may not, however, be counted separately in the offender score
calculation if they encompass the “same criminal conduct.” RCW
9.94A.589(1)(a). Same criminal conduct is “two or more crimes that [(1)] require
the same criminal intent, [(2)] are committed at the same time and place, and
[(3)] involve the same victim.” RCW 9.94A.589(1)(a). Unless all of these
elements are present, the criminal offenses must be counted separately. State v.
Chenoweth, 185 Wn.2d 218, 220, 370 P.3d 6 (2016).
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/20
Determinations by the trial court about whether two offenses are the same
criminal conduct are reviewed for abuse of discretion. State v. Aldana Graciano,
176 Wn.2d 531, 536, 295 P.3d 219 (2013). Where the record supports only one
conclusion, the sentencing court abuses its discretion by ruling otherwise.
Graciano, 176 Wn.2d at 537-38. Where the trial court has made no specific
finding as to same criminal conduct but has calculated the offenses separately as
part of the offender score, as here, the appellate court treats this as an implicit
determination that the defendant’s offenses did not constitute the same criminal
conduct. State v. Channon, 105 Wn. App. 869, 877, 20 P.3d 476 (2001).
1. Preservation of Error
As a threshold matter, the State contends that this argument has been
waived because it was not raised at the trial court. We agree that Bell may not
directly challenge the trial court’s implicit determination that his offenses do not
constitute the same criminal conduct.
Under most circumstances, issues not raised at the trial court have not
been preserved for consideration on appeal. RAP 2.5(a).19 However, “[i]n the
context of sentencing . . . illegal or erroneous sentences may be challenged for
the first time on appeal.” State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452
(1999). An exception exists to this exception: where the alleged error is factual
and discretionary in nature, rather than of a purely legal dimension, defendants
19 RAP 2.5(a) carves out exceptions to this principle when (1) the trial
court lacked jurisdiction, (2) a party failed to establish facts upon which relief could be granted, or (3) a “manifest error affecting a constitutional right” occurred. Bell does not invoke these exceptions to argue that we should consider this issue.
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/21
may waive their ability to challenge the error later on by agreeing to underlying
facts. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618
(2002). A defendant waives “any challenge to a miscalculated offender score by
agreeing to that score (or to the criminal history on which the score is based) in a
plea agreement or by other stipulation.” Goodwin, 146 Wn.2d at 873. The same
criminal conduct analysis is partially factual in nature and is reviewed for an
abuse of discretion. RCW 9.94A.589(1)(a); Graciano, 176 Wn.2d at 536. A
defendant can therefore waive their ability to challenge a same criminal conduct
calculation that impacted the offender score used at their sentencing.
Bell waived his ability to challenge his offender score on appeal. In his
sentencing memorandum, he wrote:
The controlling standard range in this matter is 111-147 months (Assault First Degree, Offender Score of 2 points due to the other current offense of Drive by Shooting) . . . plus a 60 month Firearm Enhancement (due to the special verdict of the jury).
The total controlling range is therefore 171 months to 207 months.
Bell had no prior adult felony convictions to be included in his offender score.
Therefore, only his conviction for drive-by shooting impacted the length of his
conviction for assault. By affirmatively agreeing to a controlling offender score of
two, Bell necessarily asserted that the court did not need to conduct a same
criminal conduct analysis.
It follows that the State is correct when it asserts that Bell did not preserve
this issue for our direct review. We still reach it, however, by way of Bell’s
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/22
argument that his attorney’s failure to raise the issue in the trial court constituted
ineffective assistance of counsel.
2. Ineffective Assistance of Counsel
Defendants enjoy a constitutional right to effective representation by
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). To demonstrate that
this right was violated by their attorney’s defective performance, an appellant
must demonstrate that (1) defense counsel’s representation fell below an
objective standard of reasonableness, and (2) except for counsel’s unreasonable
representation, the result of the proceeding would have been different.
McFarland, 127 Wn.2d at 334-35. Because of the test’s second element, failure
to object where that objection would not have been sustained is not ineffective
assistance of counsel. State v. Johnston, 143 Wn. App. 1, 19, 177 P.3d 1127
(2007).
To prevail in his ineffective assistance of counsel claim, Bell must
demonstrate that had his attorney raised the same criminal conduct issue at the
trial court, he would have likely prevailed. In re Pers. Restraint of Davis, 152
Wn.2d 647, 714, 101 P.3d 1 (2004). This, though, is a burden he cannot meet
because his two offenses do not encompass the same criminal conduct.
Bell’s offenses do not encompass the same criminal conduct because
they did not involve the same victim, a necessary part of the same criminal
conduct test. RCW 9.94A.589(1)(a). Freddie Brooks was the victim of Bell’s
assault, as reflected in the court’s instructions to the jury: “[t]o convict the
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/23
defendant of the crime of assault in the first degree, [the State must prove that]
the defendant assaulted Freddie Brooks.” (Emphasis added.) In contrast, the
jury instructions for drive-by shooting were less direct, requiring only that Bell
created “a substantial risk of death or serious physical injury to another person.”
(Emphasis added.)
The language in the jury instructions for drive-by shooting tracks case law
interpreting the drive-by shooting statute, which portrays it as a crime that
criminalizes conduct that puts at risk—victimizes—the general public. See In re
Pers. Restraint of Bowman, 162 Wn.2d 325, 332, 172 P.3d 681 (2007)
(“Although a drive-by shooting may cause fear of bodily injury, bodily injury, or
even death, such a result is not required for conviction. Drive-by shooting does
not require a victim; it requires only that reckless conduct creates a risk that a
person might be injured.”). That it does not require a specific victim places drive-
by shooting in that category of offenses whose “victim” can be the general public.
See State v. Haddock, 141 Wn.2d 103, 110-11, 3 P.3d 733 (2000) (holding
unlawful possession of a firearm victimizes the general public); State v. Williams,
135 Wn.2d 365, 369, 957 P.2d 216 (1998) (holding victim of intent to sell drugs
was general public).
This legal conclusion about the nature of the charge is reflected in the
facts of the case, which also support a determination that Bell’s two crimes
impacted different victims. The general public was victimized because Bell
indiscriminately fired a gun in a public place, from the midst of traffic, with a
commercial building behind his intended target. Jenkins, Brooks’s girlfriend, was
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/24
walking near him when the shots were fired, was forced to take cover, and was
also victimized.
Because the victim of Bell’s assault, Brooks, is different from the victim of
his drive-by shooting, the general public and Jenkins in addition to Brooks, we
conclude that the trial court did not err by implicitly determining that his two
offenses do not encompass the same criminal conduct. As a result, because a
motion by Bell’s attorney that his convictions be considered the same criminal
conduct would not have been sustained, his counsel was not ineffective.
Statement of Additional Grounds
In addition to his attorney’s briefing on appeal, Bell submitted a statement
of additional grounds. Statements of additional grounds are permitted by
RAP 10.10. They serve to ensure that an appellant can raise issues in their
criminal appeal that may have been overlooked by their attorney. Recognizing
the practical limitations many incarcerated individuals face when preparing their
own legal documents, RAP 10.10(c) does not require that the statement be
supported by reference to the record or citation to authorities. It does require,
however, that the appellant adequately “inform the court of the nature and
occurrence of alleged errors.” RAP 10.10(c). And it relieves the court of any
independent obligation to search the record in support of the appellant’s claims,
making it prudent for the appellant to support their argument through reference to
facts where possible. RAP 10.10(c). To enable that factual support, it provides
the means for appellants to obtain copies of the record from counsel.
RAP 10.10(e).
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/25
Here, Bell has submitted a succinct statement consisting of only five
sentences: Inside the hearing the person didn’t appear in court[,] made the decision to not come. Their [sic] was no testimony. In the video that was shown the person had a hood on not being noticeable. .... While in the court every witness had no clue who did the shooting. Nobody identified me as the shooter.
We interpret this as raising two issues: (1) a confrontation clause challenge
concerning the lack of testimony from Bell’s victim Brooks—the noteworthy
witness absence of the trial, and (2) a general challenge to the sufficiency of the
evidence by which he was convicted. Neither challenge is successful.
1. Confrontation Clause
The Washington and federal constitutions both protect a criminal
defendant’s right to confront the witnesses against them and the defendant’s
right to obtain witnesses in their own favor. WASH. CONST. art. I, § 22;20 U.S.
CONST. amend. VI.21 These are complementary rights. Relying on them, our
state Supreme Court has rejected claims that the State’s failure to call certain
witnesses violated a defendant’s rights, writing, “The right to process to compel
the attendance of witnesses must be asserted and maintained.” State v.
Summers, 60 Wn.2d 702, 706, 375 P.2d 143 (1962) (concluding defendant’s
20 “In criminal prosecutions the accused shall have the right . . . to meet
the witnesses against him face to face [and] to have compulsory process to compel the attendance of witnesses in his own behalf.” 21 “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor.”
25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83387-1-I/26
article I, section 22 rights were not violated when State chose not to bring
testimony from potential witnesses). The State has no obligation to make a
defendant’s case for them; a defendant has the tools needed to make their own
case and ensure witnesses’ presence.
Here the victim of Bell’s crimes, Freddie Brooks, did not testify. He was in
prison at the time of Bell’s trial and was “essentially unwilling . . . to be involved in
that way” with the charges against Bell. Because the absence of such a key
witness was noteworthy, it was discussed throughout the proceedings at the trial
court. In particular, during jury selection, the State sought to make sure that no
jurors would hold Brooks’s absence against it, and his absence was directly
addressed in trial. Because it was a running theme of trial and because Brooks
is arguably the most material witness in the crime against Bell, it is reasonable to
construe Bell’s statement that “the person didn’t appear in court[,] made the
decision not to come” refers to Brooks’s choice not to testify.
As in Summers, the State not calling Brooks to testify does not violate
Bell’s article I, section 22 and Sixth Amendment rights. If Bell wished for
Brooks’s testimony, he could have compelled it. He did not. We conclude that
Bell’s right to confront the witnesses against him was not affected by Brooks’s
absence.
2. Sufficiency of the Evidence
Finally, Bell challenges whether the evidence admitted at trial was
sufficient to support his conviction. We conclude that it was.
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Evidence is sufficient if “ ‘after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ ” State v. Green, 94
Wn.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion) (quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Because
credibility determinations are for the trier of fact—in this case, the jury—appellate
courts “defer to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150
Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Here, the evidence was sufficient for the jury to convict. Bell had fought
with Brooks earlier in the day. He owned a gun of the same caliber used in the
shooting, a gun he later claimed he had lost. The witnesses’ descriptions of the
make, model, and license plate of the shooter’s car very closely matched Bell’s
car. And eyewitness testimony of the shooter’s appearance, though very vague,
roughly described Bell. Bell’s arguments amount to the assertion that his
conviction requires particular forms of evidence—namely, testimony from his
victim and witnesses testifying that they recognized him as the shooter—to
stand. This is incorrect. We conclude that the evidence was sufficient.
We affirm.
WE CONCUR: