FILED JUNE 14, 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STATE OF WASHINGTON, ) ) No. 32876-7-111 Respondent, ) ) v. ) ) MATTHEW OWEN HASTINGS, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. - Matthew Hastings appeals the trial court's denial of his motion
for a new trial on charges of residential burglary, violation of a protection order, and theft
in the third degree. He argues that each of two trial irregularities deprived him of a fair
trial: jurors saw him being escorted from the courtroom by jail staff, thereby violating his
right to be presumed innocent; and the trial court failed to notify the lawyers of a juror
question in violation of CrR 6.IS(t)(l), thereby denying him a right to counsel at a
critical stage of trial.
The two irregularities occurring at trial were harmless. For that reason, and
because Mr. Hastings raises no meritorious challenges in a pro se statement of additional
grounds, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Before spring 2014, Nancy Newman and Matthew Hastings lived together on and State v. Hastings No. 32876-7-111
off for about seven years, in a cabin she was purchasing under contract. When their
relationship deteriorated, Ms. Newman obtained or renewed a protection order against
Mr. Hastings on March 26, 2014. A few days later, Mr. Hastings called Ms. Newman
and asked if he could stop by her house to collect his belongings. She told him that in
light of the protection order he needed to contact the sheriff.
Almost a month later, on April 23, Mr. Hastings went to Ms. Newman's home
while she was away and entered, using a key he claims to have had for years. In addition
to picking up some of his own belongings, he took some items that Ms. Newman claims
belonged to her: a jewelry hanger, some jewelry, and a dog that had lived with the couple
for almost seven years. Ms. Newman had purchased the dog as a six-week-old puppy.
Mr. Hasting claims she bought the dog, which he named Sparkle, as a gift for him. Ms.
Newman claims she bought the puppy, which she named Riley, for herself.
Ms. Newman returned home just in time to see Mr. Hastings drive away in his
van. She called the sheriffs office and reported the theft. Officer Ian Edwards, who was
familiar with Mr. Hastings, located him about a mile from Ms. Newman's house. He
found the dog and the jewelry with Mr. Hastings. Mr. Hastings was charged with
residential burglary, violation of a protection order, and theft in the third degree.
When trial took place that October, it took only one day to select the jury, present
the evidence, instruct the jurors, and deliver closing arguments. Among the evidence
presented was Ms. Newman's testimony that she saw Mr. Hastings, unauthorized, leaving
2 State v. Hastings No. 32876-7-111
the vicinity of her cabin, and her identification of her belongings taken and found in Mr.
Hasting's possession. Mr. Hastings testified he believed the dog was his, although he
intended to return it to Ms. Newman since he expected to be on the road for a time. He
told jurors he took the jewelry hanger and jewelry because some of the jewelry belonged
to him but was tangled up with jewelry belonging to Ms. Newman. He claimed he
wanted to have his property and hers sorted out in the presence of a third party.
Following an unknown period of deliberation on that first trial day, the jurors were
excused for the night. After the trial judge left the bench, the jurors began leaving, and
Sergeant Garbe, 1 a member of jail staff, approached Mr. Hastings and escorted him from
the courtroom. Mr. Hastings's attorney notified the court that afternoon of her concern
that jurors had seen Mr. Hastings being escorted out by the sergeant.
The following morning, she provided the following record of what had happened:
After the court left the bench and as the jurors were beginning to walk behind counsel tables toward the courtroom door, jail Sergeant Garbe loudly told Mr. Hastings, "Let's go." I was aware that jurors were only a few steps away and instructed Mr. Hastings in a whisper to wait until the jurors were out of the courtroom. I also tried to catch Sgt. Garbe's attention to discreetly ask him to wait until the jurors were out of the room, but he did not see or acknowledge me. Sgt. Garbe again told Mr. Hastings, "Let's go", causing Mr. Hastings to step towards him directly in the path of jurors who were now leaving the courtroom. Sgt. Garbe then physically took Mr. Hastings by the arm and escorted him bodily from the courtroom, literally in the middle of jurors who were also leaving. One other jail security officer was present and accompanied them.
1 The sergeant's first name does not appear in the record.
3 State v. Hastings No. 32876-7-111
Clerk's Papers (CP) at 87-88. Mr. Hasting's lawyer explained that she followed Sergeant
Garbe into the hallway, where she told him, "[Y]ou are supposed to wait until the jury is
out of the room." Report of Proceedings (RP) at 124. The sergeant responded, "Oh, I'm
sorry." Id. Since jurors were still in the vicinity, he took Mr. Hastings over to a bench
and sat there with him while the final jurors left.
Mr. Hastings argued the jail escort in the view of jurors was governmental
misconduct and the charges against him should be dismissed under CrR 8.3(b ). After the
court questioned counsel and ascertained that no words were exchanged with the jurors
and there were "[n]o shackles, no handcuffs, simply [] the presence of staff," the court
denied the motion. RP at 125.
During deliberations later that day, the jury submitted a question to the court about
its jury instruction 12, the "to convict" instruction on residential burglary. The
instruction identified the following elements the State was required to prove:
( 1) That on or about the 23rd day of April, 2014, the defendant entered or remained unlawfully in a dwelling at 10246 Mill Creek Road; (2) That the entering or remaining was with intent to commit a crime against a person or property therein; and (3) That this act occurred in the State of Washington.
CP at 105.
The juror's question to the court was:
Regarding "a crime" in Instruction No. 12, can that crime be[:] A. Violation of restraining order
4 State v. Hastings No. 32876-7-III
B. Theft C. Both D. Just entering unlawfully.
CP at 124. Without contacting the lawyers and notifying them of the jury's question, the
court responded, "You have the Court's instructions on the law. Please refer to your
instructions and continue to deliberate." Id. Later that day, the jury returned a verdict of
guilty on all counts.
Shortly after the trial, Mr. Hastings moved for a new trial, relying on both the
jury's viewing of Sergeant Garbe escorting him from the courtroom and the trial court's
failure to notify the lawyers of the jury's question. He contended that had his lawyer
been notified of the jury's question, he would have asked the court to instruct the jury
that the intent to commit a crime element of jury instruction 12 could not be satisfied by
option "D.," ("Just entering unlawfully"). The court denied the motion. Mr. Hastings
appeals.
ANALYSIS
Mr. Hastings appeals the trial court's denial of his motion for a new trial, arguing
he was entitled to a new trial on both grounds raised in the trial court. Under CrR
7.5(a)(5), the court may grant a defendant a new trial when it affirmatively appears the
defendant was materially affected by an "[i]rregularity in the proceedings of the court,
jury or prosecution, or any order of court, or abuse of discretion, by which the defendant
was prevented from having a fair trial."
5 State v. Hastings No. 32876-7-111
We review a trial court's denial of a motion for a new trial for abuse of discretion.
State v. Mullen, 171 Wn.2d 881, 905, 259 PJd 158 (2011). "A trial court abuses its
discretion when its decision is manifestly unreasonable or exercised on untenable
grounds or for untenable reasons." State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251
(2007). Alleged violations of the right to an impartial jury and the presumption of
innocence are reviewed de novo. State v. Johnson, 125 Wn. App. 443,457, 105 P.3d 85
(2005).
Jury viewing ofjail escort
Mr. Hasting argues that when Sergeant Garbe escorted him from the courtroom in
front of the jury, his right to be presumed innocent was violated.
"The right to a fair trial is a fundamental liberty secured by the Fourteenth
Amendment." Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126
(1976). "Courts have recognized that restraining a defendant during trial infringes upon
this right to a fair trial for several reasons," including that it violates a defendant's right to
be presumed innocent. State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). "The
presumption of innocence, although not articulated in the Constitution, is a basic
component of a fair trial under our system of criminal justice." Estelle, 425 U.S. at 503.
"Courts have recognized that the accused is thus entitled to the physical indicia of
innocence which includes the right of the defendant to be brought before the court with
6 State v. Hastings No. 32876-7-III
the appearance, dignity, and self-respect of a free and innocent man." Finch, 137 Wn.2d
at 844.
Courts should closely scrutinize whether a practice challenged as affecting the
presumption of innocence had a negative effect on the judgment of jurors, evaluating "the
likely effects 'based on reason, principle, and common human experience.'" State v.
Gonzalez, 129 Wn. App. 895, 900-01, 120 P.3d 645 (2005) (quoting Estelle, 425 U.S. at
504 ). Handcuffing should not be authorized by the court except to either prevent escape,
prevent the accused from injuring others and to maintain a quiet and peaceable trial.
State v. Early, 70 Wn. App. 452, 462, 853 P.2d 964 (1993). The transport by jail staff of
even an unshackled, unhandcuffed defendant should be done outside the presence of
jurors or prospective jurors.
Nonetheless, the mere fact that a jury sees an inmate under restraint-even an
inmate wearing shackles-does not mandate reversal. In State v. Rodriguez, 146 Wn.2d
260,270, 45 P.3d 541 (2002), our Supreme Court spoke approvingly of several earlier
decisions holding that jurors' passing exposure to a defendant under restraint does not
warrant a mistrial.
In [State v. ]Gosser, [33 Wn. App. 428,435, 656 P.2d 514 (1982)] the defendant moved for a mistrial, contending that his right to a fair trial was prejudiced when several jurors observed his shackles being removed outside the courtroom. He did not request a curative instruction and could point to nothing other than the jury's brief view of him in shackles to support his contention that only a new trial would cure the prejudice. The court affirmed the trial court's denial of the motion for mistrial. Similarly,
7 State v. Hastings No. 32876-7-111
in State v. Sawyer, members of the jury observed a deputy handcuffing the defendant at the end of the first day of trial. This court held that the prompt admonition to the jury the following day cured the error, and affirmed the denial of motion for mistrial. State v. Sawyer, 60 Wn.2d 83, 371 P.2d 932 (1962). In State v. Russell, 33 Wn. App. 579, 588, 657 P.2d 338 (1983), a deputy sheriff stopped the defendant as he was attempting to join his attorney at a sidebar, which defendant contended created a prejudicial inference that the defendant was dangerous. The defendant did not request a cautionary instruction but instead moved for a mistrial. The Court of Appeals affirmed the trial court's denial of the motion, holding that when an error can be obviated by jury instruction, the error is waived by failing to request such an instruction.
Id. at 270-71. Other cases are in accord. See State v. Ollison, 68 Wn.2d 65, 68-69, 411
P.2d 419 (1966) (motion for mistrial denied notwithstanding that prospective jurors saw
defendants being transported to courtroom in handcuffs; no prejudice shown); State v.
Jordan, 79 Wn.2d 480,482,487 P.2d 617 (1971) (same result where handcuffs were
placed on defendant in the presence of at least two jurors; no prejudice shown); Early, 70
Wn. App. at 462 (Even though handcuffing should ordinarily not be permitted, "Mr.
Early's mere appearance in handcuffs during jury selection does not indicate the incident
'inflamed or prejudiced' the jurors against [him];" mistrial was properly denied.).
Our Supreme Court has placed on the defendant the obligation to object or request
a curative instruction ifhe or she fears a jury's negative inference from the fact that the
defendant is restrained. Rodriguez, 146 Wn.2d at 270 & n.3 (citing State v. Elmore, 139
Wn.2d 250,273,985 P.2d 289 (1999)). Here, none was requested by Mr. Hastings,
which is unsurprising. Mr. Hastings was merely taken by the arm by Sergeant Garbe, an
8 State v. Hastings No. 32876-7-111
arguably ambiguous action for any jurors who noticed it; the nature of the escort did not
suggest that the sergeant viewed Mr. Hastings as dangerous. An admonition by the court
not to attach significance to the fact that Mr. Hastings was in custody would have
clarified, to all the jurors, that a jail escort had taken place.
Because prejudice was unlikely, none is shown, and Mr. Hastings elected not to
request a curative instruction, we find no abuse of discretion in the trial court's denial of
a motion for a new trial on this ground.
II. Violation of CrR 6.15 and deprivation of right to counsel at all critical stages of trial
Mr. Hastings also argues that the trial court violated court rules when it responded
to a jury question without notifying counsel of the question, and that the court's violation
deprived him of his constitutional right to counsel at a critical stage of trial.
CrR 6.1 S(f) deals with questions from the jury during deliberations. It provides in
relevant part that the jury shall be instructed of its right to pose a written question, and, if
a question is submitted by the jury, provides:
The court shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response.
CrR 6.15(f)(l). It is uncontested on appeal that the trial court did not notify the parties
of the content of the jury's question or provide them an opportunity to comment on an
appropriate response. In this regard, it erred.
9 State v. Hastings No. 32876-7-111
I I "[ A]n improper communication between the court and the jury is an error of
constitutional dimensions." State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120
(1997) (citing State v. Rice, 110 Wn.2d 577,613, 757 P.2d 889 (1988)). But the
communication may be so inconsequential as to constitute harmless error. Id. (citing
State v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983)). Where the court violates
CrR 6.15(f)(l), "the defendant must raise the possibility that the communication between
the judge and the jury was prejudicial and the State may demonstrate that the error was
harmless." State v. Jasper, 158 Wn. App. 518,541,245 P.3d 228 (2010), ajf'd, 174
Wn.2d 96, 271 P.3d 876 (2012) (citing Bourgeois, 133 Wn.2d at 407). A constitutional
error is harmless "if the appellate court is convinced beyond a reasonable doubt that any
reasonable jury would have reached the same result in the absence of the error." State v.
Guloy, 104 Wn.2d 412,425, 705 P.2d 1182 (1985); State v. Langdon, 42 Wn. App. 715,
717, 713 P.2d 120 (1986).
"Generally, where the trial court's response to a jury inquiry is 'negative in nature
and conveys no affirmative information,' no prejudice results and the error is harmless."
Jasper, 158 Wn. App. at 541 (quoting State v. Russell, 25 Wn. App. 933,948,611 P.2d
1320 (1980)).
Mr. Hastings attempts to distinguish Jasper and like cases on the grounds that
"here the jury was confused by an essential element requirement" and his lawyer would
have proposed and requested a response that would correct the jury's confusion. Reply
10 State v. Hastings No. 32876-7-III
Br. at 6. If review of the instructions already given to the jury were flawed or confusing
and required clarification, Mr. Hasting's point would be well taken. But the jury
instructions were correct and clear. "Whether to give a particular instruction to the jury is
a matter within the discretion of the trial court." Stiley v. Block, 130 Wn.2d 486, 498,
925 P .2d 194 ( 1996). If the trial court had notified the parties of the jury's question, it
would not have abused its discretion by referring the jurors back to the existing
instructions. Mr. Hastings cannot show prejudice.
Moreover, overwhelming evidence, including Mr. Hastings's own testimony,
established he committed the crime of residential burglary by entering Ms. Newman's
home knowing it was in violation of a protection order. We are convinced beyond a
reasonable doubt that even if the parties had been notified of the jury's question and the
trial court had agreed to provide the type of response suggested by Mr. Hastings, the jury
would still have found Mr. Hastings guilty based on his proven unlawful entry with the
proven intent to violate the protection order.
Here, too, we find no prejudice from the court's error and therefore no abuse of
discretion in its denial of the motion for a new trial.
STATEMENT OF ADDITIONAL GROUNDS
In a prose statement of additional grounds for review (SAG), Mr. Hastings raises
four.
Dismissed claim. Mr. Hastings's first additional ground states:
11 State v. Hastings No. 32876-7-III
On June 17th, 2014[,] Cause No. 420297109 was dismissed in District Court, Judge Knowlton-City of Walla Walla, Wa. On June 24th[,] 2014[,] Count 2 Cause No. 420297109 (Amended Information) by Prosecuting Attorney Michelle Mulhern charged me with offence [sic] that got dismissed, and I was convicted of from Mulherns lies and government [sic] mismanagement.
SAG at 1. Count 2 of the amended information charging Mr. Hastings with violation of a
protection order states the order had been issued in Walla Walla District Court cause
number 420297109.
Included in our record on review is a motion and order for dismissal in that matter,
signed by Deputy Prosecuting Attorney Kelly A.B. Stevenson, moving for an order
"dismissing the charge in the above-mentioned matter with prejudice for the following
reason: It appears the state will be unable to prove the absence of a statutory defense
beyond a reasonable doubt." CP at 71 (emphasis added). Notably, the motion and order
bears a handwritten notation, "Vio. Pro. Order[,] Ass. 4[,] 3/25/14." Id. The violation of
the protection order at issue in this case, a superior court case numbered 14-1-00140-9, is
alleged to have occurred on April 23, 2014.
A related document in the record-evidently a note to prosecutor Mulhern from
Mr. Hastings, states that his attorney, Rob Olsen, "was there that day for me," meaning
the date the charge was dismissed. CP at 73. Finally, also included in the record on
appeal is correspondence to Mr. Hastings from his lawyer in the trial below (not Mr.
Olson), evidently filed with the court by Mr. Hastings, which states in part:
12 State v. Hastings No. 32876-7-111
I also spoke with Rob Olson, and he advises me that the district court case he represented you in is a different matter than this case.
CP at 74.
When Mr. Hasting tried to raise the asserted dismissal during trial, the State's
objection and motion to strike were sustained, without any meaningful protest from his
trial lawyer.
The implication of the materials in our record is that Mr. Hastings was charged
with violating the protection order on March 25, 2014, and that charge was dismissed in
June 2014. But at issue in the trial below was a separate violation of the protection order
on April 23, 2014. If Mr. Hastings has materials outside the record that demonstrate the
protection order itself was dismissed at a time and for a reason that would be a defense to
count two against him, his remedy is to file a personal restraint petition (PRP). 2 State v.
Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).
Improper subpoena. Mr. Hastings next argues the State subpoenaed one of his
witnesses, Thomas Reed, for the incorrect date. The police report filed on the date Mr.
Hastings was arrested states that when Mr. Hastings was located and arrested on the day
of the burglary, he was sitting with Mr. Reed. According to the police report, "[t]he
2 Mr. Hastings has attached materials to his SAG that cannot be considered because they are outside our record. Those would have to be submitted in support of a PRP. (We do not mean to imply that his attachments are sufficient to demonstrate a defense to count two.)
13 State v. Hastings No. 32876-7-III
second subject, who gave his name as Thomas Reed, was reading scripture from a bible
and praying" during Mr. Hasting's arrest. CP at 2. It also states:
Mr. Hastings friend, Mr. Reed, appears to have numerous mental conditions that would limit his cognitive ability to determine right from wrong. Mr. Reed's mother was called and advised she would respond to pick him up. Mr. Reed just continued to read and sing songs from the bible during the entire contact.
Id.
RAP 2.5(a) states the general rule for appellate disposition of issues not raised in
the trial court: appellate courts will not entertain them. State v. Scott, 110 Wn.2d 682,
685, 757 P.2d 492 (1988). The reason for this rule is to afford the trial court an
opportunity to correct errors, thereby avoiding unnecessary appeals and retrials. Smith v.
Shannon, 100 Wn.2d 26, 37,666 P.2d 351 (1983). Assuming the State failed to
subpoena Mr. Reed (and nothing in our record indicates that it did), 3 the time to question
his failure to appear was trial, not appeal. Nothing in our record indicates Mr. Reed's
failure to appear was ever raised during trial. We will not consider the asserted error
further.
Jail escort. Mr. Hastings next reprises his appellate lawyer's jail escort argument,
but states that another officer participated in the improper escort. It does not change our
3 Here again, we disregard attachments to Mr. Hastings's SAG that do not appear in the appellate record.
14 II State v. Hastings No. 32876-7-111
analysis. The issue was adequately addressed by counsel and will not be reviewed again.
See RAP 10.lO(a).
Objectionable Juror 4. Finally, Mr. Hastings complains that after trial began,
juror 4 notified the court that she recognized Ms. Newman, the victim, as her local
librarian. This was brought to the attention of lawyers for both parties. Since Mr.
Hastings did not ask that juror 4 be excused at that time, the issue was not preserved.
RAP 2.5(a).
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.
?JiloctJ~, ~- Siddoway, J.
WE CONCUR:
1 Fe~l s j