IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 87541-8-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
AARON JAVAN MITCHELL,
Appellant.
DÍAZ, J. — Aaron Mitchell shot and killed Joshua Blackwood and injured Harold Vennes after he caught them prowling his vehicle. Two years later, a jury convicted him of murder, attempted murder, and assault while armed with a firearm, and the trial court sentenced him to 45 years in prison. He now asserts he is entitled to a new trial because the court denied his right to a public trial by holding an unrecorded conference in its chambers. He also claims the court violated the appearance of fairness doctrine because it was hostile to his counsel, including by making “retaliatory” rulings. Finally, Mitchell argues that the court wrongly denied his right to fully cross-examine his ex-partner and that the State committed prejudicial misconduct by improperly vouching for the truthfulness of its only eyewitness. Finding none of his claims entitles him to a new trial, we affirm.
I. BACKGROUND
On October 7, 2022, Mitchell chased and fired his gun at Blackwood and Vennes after they tried to steal his Chevy Tahoe with a stolen tow truck. The two
2
men eventually crashed while trying to flee, at which point Mitchell killed Blackwood by shooting him in the back and wounded Vennes by shooting him in the shoulder.
Police located Mitchell months later, and the State charged him with murder, attempted murder, and assault while armed with a firearm. The case proceeded to trial in the fall of 2024, and a jury heard testimony from numerous witnesses including Vennes and Mitchell’s ex-partner, Carol Bell. The jury convicted him on all counts.
Mitchell timely appeals.
II. ANALYSIS
A. Alleged Errors by the Trial Court 1. Right to a public trial, the appearance of fairness, and retaliatory rulings Mitchell asserts that the trial court erred in multiple respects with regard to a series of interrelated interactions which occurred at the start of his trial. We attempt to distill and address his various arguments in turn. 1 First, Mitchell claims that the court violated his constitutional right to a public trial by holding a short conference in chambers. He asserts that it should have been conducted contemporaneously on the record because, he broadly avers, “it affected the presentation of evidence or the fairness of trial.”
1 Mitchell mentions several times in passing that his trial counsel was a Black man,
but he does not assign error to, or provide substantive argument that, the court’s decisions were based in racial animus. Thus, we do not review such a claim, even if one is intended. See Joy v. Dep’t of Lab. & Indus.,170 Wn. App. 614, 629, 285 P.3d 187 (2012) (holding that passing treatment of an issue or lack of reasoned argument are insufficient to merit judicial consideration).
3
Whether a defendant’s right to a public trial has been violated is a question of law which we review de novo. State v. Smith, 181 Wn.2d 508, 513, 334 P.3d 1049 (2014). The “open courts doctrine,” derived from article I, section 22, has a three-part framework. See id.; WASH. CONST. art. I § 22. First, we ask (1) “whether the public trial right is implicated at all.” Smith, 181 Wn.2d at 513 (quoting State v. Sublett, 176 Wn.2d 58, 92, 292 P.3d 715 (2012) (Madsen, C.J., concurring)). Only then, we ask (2) “whether, if the public trial right is implicated, there is in fact a closure of the courtroom,” and then, (3) “if there is a closure, whether . . . the closure was justified.” Id.
Examining the first question under what is known as the “experience and logic test,” our Supreme Court has held: “a sidebar conference, even if held outside the courtroom, does not implicate Washington’s public trial right.” Smith, 181 Wn.2d at 519. The Court concluded it would not make trials more fair to send juries out of the courtroom every time a trial judge wanted to caution counsel or hear argument on an objection. Id. at 515-16. It also explained that legal rulings as to the admissibility of evidence “are exclusively within the province of the trial court” so it opined, “[n]othing is added to the functioning of the trial by insisting that the defendant or public be present during sidebar or in-chambers conferences.” See id. at 519. Because it held “reasonable and traditional sidebars used to avoid interruption of a trial do not implicate the public trial right,” it declined to reach the two other steps of the governing framework. Id. at 521.
Here, the State objected to a portion of Mitchell’s opening statement and the court paused proceedings to speak to counsel in chambers without removing
4
the jury from the courtroom. An off-the-record, three-minute conference then occurred in chambers. Id. The transcript nowhere indicates that Mitchell’s counsel advised the court he did not wish to proceed outside the courtroom beforehand. Id. And the court summarized the conference on the record afterwards.
As in Smith, Mitchell’s claim fails at the first step. A violation of his right to a public trial does not occur by the mere fact that a sidebar conference occurs outside a courtroom. Smith, 181 Wn.2d at 520-21. And critically, Mitchell fails to argue, let alone establish, that the conference at issue here differed from those “reasonable and traditional sidebars” which our Supreme Court held do not implicate the right. 2 Id. As a result, this assignment of error is unavailing.
Second, Mitchell claims that he was not tried by an impartial judge. In predominant part, he argues that the court violated “the appearance of fairness doctrine” because its conduct toward his attorney was and/or appeared to be hostile. 3 Under the state and federal constitutions, a criminal defendant has the right to be tried and sentenced by an impartial court. U.S. CONST. amends. VI, XIV; WASH. CONST. art. I, § 22. Washington law requires judges to be impartial and also to appear impartial. State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d 703 (2017).
2 However, even assuming the right was implicated and the conference constituted
a closure of the courtroom, Mitchell’s claim still fails at the third step of the inquiry. We cannot say that the court’s decision to address the State’s objection and reiterate its earlier rulings outside the presence of the jury was inappropriate. 3 The State claims Mitchell waived this claim because he did not move the court to
recuse itself. The State fails to cite any authority for that proposition, however. Moreover, we hold that Mitchell’s counsel preserved the issue by moving for a mistrial after contending the court had repeatedly interrupted him and been “very aggressive.”
5
Under “the appearance of fairness doctrine,” a judicial proceeding is valid “if a reasonably prudent, disinterested observer would conclude that the parties received a fair, impartial, and neutral hearing.” State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010). The test for determining whether a judge’s impartiality might reasonably be questioned is an objective test that assumes a reasonable observer knows and understands all the relevant facts. Solis-Diaz, 187 Wn.2d at 540.
A party who asserts a violation of this doctrine must adduce evidence of a judge’s actual or potential bias. Gamble, 168 Wn.2d at 187-88. We presume that trial judges perform their functions regularly and properly without bias or prejudice. West v. Wash. Ass’n of County Offs., 162 Wn. App. 120, 136, 252 P.3d 406 (2011).
Here, while the transcript does include a number of tense discussions between the court and Mitchell’s counsel, the court explained its conduct was not intended to be hostile but corrective and responsive to the court’s belief that his counsel had acted with impatience and disrespect. Moreover, the record reflects that, at various other points, the court made a concerted effort to urge the parties remain dispassionate and civil and that it sought to avoid any suggestion to the jury of wrongdoing by the parties.
In other words, viewed in its totality, the record does not support the contention that an observer who was aware of all relevant facts could reasonably question the court’s impartiality because of its hostility toward Mitchell’s attorney. See Solis-Diaz, 187 Wn.2d at 540. Mitchell has not adduced sufficient evidence of the court’s actual or potential bias and does not overcome the presumption it
6
performed properly. Gamble, 168 Wn.2d at 187-88.
Mitchell’s third, related claim asserts that the court reversed its own evidentiary ruling in apparent retaliation for the aforementioned conflicts. He avers that, after a contentious effort to memorialize the chambers conference, hostility from the court toward his counsel was “coupled with [a] retaliatory . . . reversal of a suppression order,” which—in a nutshell—had previously barred evidence of his arrest.
We hold that this alleged error is not properly preserved and, even if it was, its underlying factual contention is not borne out by the record. As to preservation, Mitchell at no point during trial claimed that the court was changing its prior ruling in retaliation. Now on appeal, he does not argue manifest constitutional error. Thus, he does not properly raise this claim for the first time. See RAP 2.5(a)(3); State v. Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011).
As to the underlying facts, we conclude that the court did not change its prior evidentiary ruling when it permitted certain evidence of his arrest to come in. To be sure, there was some confusion among the court and the parties as to the precise basis and scope of certain pretrial rulings. 4 We have closely compared the court’s prior evidentiary rulings with its comments after the sidebar. And we conclude that, even if it voiced some frustration with Mitchell’s counsel, 5 the court
4 For example, the State initially objected to Mitchell’s opening statement because
the evidence of Bell’s arrest would be irrelevant, but it later accused Mitchell of violating a pretrial ruling. Mitchell’s counsel disagreed arguing that his original motion had only sought to limit evidence as to his own arrest. 5 Namely, after the chambers conference, the court stated it had been surprised
that Mitchell’s counsel had not provided any notice he would discuss Bell’s arrest during his opening, given the prior exchanges about what related evidence could
7
did not reverse any prior decision. Instead, it merely applied a prior ruling which would permit the State to introduce the fact that Mitchell was arrested if Mitchell chose to discuss Bell’s arrest. In fact, his trial counsel conceded that his opening statement had “opened the door” in this regard.
In short, each of Mitchell’s initial assignments of error fail.
2. Violation of the constitutional right to confrontation Mitchell next claims that the court’s application of a superior court criminal rule violated his Sixth Amendment rights. Specifically, he avers that the court’s invocation of CrR 6.14 deprived him of a meaningful and/or adequate opportunity to prepare to cross-examine Bell, as guaranteed by the constitutional right to confrontation.
As relevant here, Superior Court Criminal Rule 6.14 states:
In any case the court on motion of the prosecuting attorney may order that a witness shall not be excused from giving testimony or producing any papers, documents or things, on the ground that such testimony may tend to incriminate or subject the witness to a penalty or forfeiture; but the witness shall not be prosecuted or subjected to criminal penalty or forfeiture for or on account of any transaction, matter, or fact concerning which the witness has been ordered to testify pursuant to this rule. The witness may nevertheless be prosecuted for failing to comply with the order to answer, or for perjury or the giving of false evidence.
In turn, the Sixth Amendment provides defendants with the right to confront witnesses in the State’s case against them. See Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431 (1986). And this right includes “the opportunity of cross examination”—an “important function” of which is “the exposure of a witness’
come in.
8
motivation in testifying.” Id. at 678-79.
This claim is contrary to the law and the facts in the record.
As to the law, Mitchell does not cite a single case that has held that the use of CrR 6.14 to compel a witness’s testimony may violate the Sixth Amendment. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (noting that if an appellant’s argument is not supported by meaningful analysis or citation to pertinent authority, we need not consider it). Instead, the sole case Mitchell cites only confirms that the confrontation right exists, in general.
Further, the record contravenes Mitchell’s contention that the court prevented him from being able to cross-examine Bell; instead, it shows that his counsel chose not to examine her after waiving argument as to a related issue about what questions he would be permitted to ask. 6 Thus, Mitchell’s claim also fails as a factual matter. B. Alleged Prosecutorial Misconduct Mitchell next argues that the State committed prejudicial misconduct by vouching for Vennes’ truthfulness through a single question it asked on direct examination.
Improper vouching by the State generally occurs “(1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if the
6 Specifically, after Mitchell’s counsel unsuccessfully moved to exclude Bell as a
witness, he asked the court whether he could characterize the protections afforded by CrR 6.14 as an immunity agreement, and the State contested that framing. In response, the court directed the parties to provide it with research on the question after a recess. But then his counsel voluntarily withdrew the motion, declined to make further argument, and chose not to avail himself of the opportunity to cross- examine Bell.
9
prosecutor indicates that evidence not presented at trial supports the witness’s testimony.” State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010) (citing United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007)).
In Ish, our Supreme Court explained that evidence showing a witness promised to testify truthfully “generally has little probative value and should not be admitted as part of the State's case in chief.” Id. at 198. Consequently, the Court held that the State should not have been allowed to introduce such evidence during direct examination, before the witness’s credibility had been attacked. Id. at 199. However, it ultimately concluded any error was harmless because it noted the defendant did not meet his burden to show the comments were both improper and prejudicial. Id. at 200.
Indeed, an appellant must establish prejudice for a prosecutorial misconduct claim to merit reversal, even if their defense counsel objected to conduct that we deem improper. See State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). To do so, they must show that the State’s conduct “had a substantial likelihood of affecting the jury’s verdict.” Id.
Here, while asking Vennes about his immunity agreement on direct examination, the State inquired, “Does that agreement require that you tell the truth?” and Mitchell objected the question was improper vouching. 7 Assuming without deciding that the State improperly vouched for Vennes’
truthfulness by asking this question, Mitchell does not show that the State’s
7 Given this objection, we disagree with the State that his prosecutorial misconduct claim is waived simply because he did not move to strike it.
10
conduct was prejudicial. 8 That is, Mitchell fails to show a substantial likelihood that the State’s conduct affected the outcome of the case. Emery, 174 Wn.2d at 760.
The State did not re-ask the question after Mitchell’s counsel objected and did not otherwise rely on it. To the contrary, the State’s closing argument enumerated the plethora of other evidence of Mitchell’s guilt. 9 In addition, Mitchell never moved to strike the question and did not avail himself of the court’s suggestion to request a curative instruction.
Therefore, whether or not the State’s question amounted to improper vouching, Mitchell does not show that such vouching was prejudicial. Ish, 170 Wn.2d at 200. 10 III. CONCLUSION
We affirm.
WE CONCUR:
8 Mitchell incorrectly claims the State bears the burden to prove harmlessness
beyond a reasonable doubt. He wrongly cites to cases addressing constitutional errors. 9 The summarized evidence included testimonial, physical, and video evidence
that Mitchell chased the victims over several miles and fired on them multiple times, until he caught up to them and fired his final shots. RP 1331-36. 10 Mitchell also claims he is entitled to reversal pursuant to the cumulative error
doctrine. It is true we may remand for a new trial under this doctrine where several errors combine to deny a defendant a fair proceeding. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). However, we will only order such a remedy if a defendant prevails on more than one claim. See State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017). Thus, Mitchell does not merit relief here, as we conclude his other assignments of error are unavailing.