State Of Washington, V. Richard Eric Nesbit

• Court: Court of Appeals of Washington
• Decided: November 7, 2022
• Docket: 83244-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 83244-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION RICHARD ERIC NESBIT,

Appellant.

COBURN, J. — Nesbit was convicted of one count of assault in the second

degree with a deadly weapon after attacking a sleeping bus passenger with a

hammer, unprovoked. Nesbit argues that the trial court made an unconstitutional

judicial comment on the evidence in advising the jury that while they may find the

video evidence disturbing, they were not permitted to communicate about the

case. Nesbit also argues that a police officer’s testimony, that Nesbit was read

Miranda 1 warnings prior to identifying himself to police, was unfairly prejudicial

requiring a mistrial despite the fact the court granted defense’s objection, struck

the testimony, and instructed the jury to disregard. Nesbit contends that the trial

court abused its discretion in denying his motions for a mistrial. We disagree and

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

Citations and pincites are based on the Westlaw online version of the cited material No. 83244-1-I/2

affirm.

FACTS

On March 22, 2020, Kent police officers responded to a report that a man

with a dog was standing outside of an Alzheimer’s care facility threatening to

break the front window with a hammer. At least three officers arrived and, with

their weapons drawn, instructed the man to lay on the ground with his arms out.

The man complied, so officers handcuffed him and seated him on the push bar at

the front of a police vehicle to speak to him. An officer read Miranda rights to the

man, who agreed to speak. During this interaction, the man identified himself as

Richard Nesbit. Nesbit was subsequently released and told he would receive a

citation for misdemeanor harassment in the mail.

Later that day, near midnight, Nesbit, wearing the same clothes and with

the same dog, as seen at the Alzheimer’s facility, boarded a King County Metro

bus. Nesbit sat toward the back of the bus with one person sitting in the row

ahead of him, who appeared to be asleep with his head against the window. The

bus proceeded for several minutes without incident.

The bus driver testified that her attention was grabbed when in the mirror

she noticed the two men were upright, grabbing at each other, and coming

toward her at the front of the bus. The victim of the attack stated “This guy is

crazy. He has a hammer.” In the scuffle, the bus driver saw what appeared to

her to be a “big stick.” The two men appeared to be fighting over the hammer.

The driver was “very scared” and stopped the bus, opening the door for one or

both of the men to get off the bus to break up the fight. The victim of the attack

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got off the bus and the bus drove away with Nesbit still on it. The bus continued

until it reached the last stop, at Kent Station, where Nesbit and the other

passengers exited.

Security cameras installed on the bus captured the attack on video. The

video shows Nesbit board the bus with his dog and take a seat toward the back

at approximately 11:46 p.m. The victim can be seen sitting in the row ahead of

Nesbit. The victim appears to fall asleep with his head against the window a

short time later. Nesbit remains seated and appears calm for several minutes.

At 11:57 p.m. Nesbit pulls a hammer out of a bag on the seat next to him and

strikes several blows to the victim’s head. The victim wakes up, shields his head

with his arms, then stands up and grabs the hammer in Nesbit’s hands. The two

grapple over the hammer while moving toward the front of the bus. The bus

stops and the victim exits through the front door of the bus at 11:58 p.m. Nesbit

then returns to his seat, still holding the hammer, and the bus proceeds.

The driver did not immediately call emergency services, but after finishing

her shift, wrote a “security incident report.” This report was assigned to

detectives with the King County Sheriff’s Office Metro Transit Police Division to

investigate. Detectives were able to identify Nesbit as the attacker, based on the

body worn camera footage of his interaction with Kent police earlier that day and

the dog he had with him at both incidents. They were unable to locate the victim

of the attack. Nesbit was subsequently charged with one count of assault in the

second degree with a deadly weapon.

Prior to trial, the defense submitted a motion in limine to exclude all

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evidence of Nesbit’s interaction with Kent police on March 22, 2020 under ER

404(b), arguing that it was unfairly prejudicial evidence of a prior bad act. The

trial court granted the motion in part, explaining the overall encounter is “more

prejudicial than probative.” The court excluded the video of the encounter, but

allowed still photos taken from the body worn camera footage to be used for the

purpose of identification. The trial court also limited the testimony of the

responding officer by ruling that “[t]he officer can testify that, ‘I encountered him, I

was questioned, and he provided the name’, you know, things of those – of that

nature can still be admitted to draw the connection between the earlier contact

and the weight, and in the allegation that we’re dealing with Mr. Nesbit was

identified.”

The case proceeded to trial in August 2021. The video of the attack was

admitted and displayed for the jury on the first day of trial. At the close of the

day, before dismissing the jury, the trial court stated:

I do want to mention to you, given my admonition that you can’t speak about any of the facts related to the case, there may be some things in today’s video that are disturbing and will stick with you. And I want you to know you can reach out to friends or family to say, ‘I’d like some company’ or ‘I don’t want some company,’ but I’m gonna [sic] ask you to abide by the admonition that you not – not speak about things that we’re – we’re looking at or considering in today’s trial. What I’m trying to say is take care of yourselves.

The defense then objected outside the presence of the jury, explaining the

concern that it was a judicial comment on the evidence and implied to jurors

there was something to be concerned about in the video. The defense

subsequently moved for a mistrial. The trial court reserved ruling on the motion.

The next day, Kent police officer Matthew Levi testified about his

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interaction with Nesbit at the care facility on March 22. When asked how he

came to learn Nesbit’s name, Levi stated “during the course of our interaction, he

provided his name and date of birth to me following Miranda being read to him.”

The defense immediately objected and moved to strike the comment as violating

the motion in limine. The trial court sustained the objection and struck the

statement from the record. It also instructed the jury to disregard the comment.

The defense moved for a mistrial on the basis of Levi’s testimony regarding

Miranda rights. The trial court again reserved ruling.

After argument from both parties, the trial court denied the motion for a

mistrial regarding judicial comment, explaining that the thrust of the comment

was to implore the jurors not to communicate about the case, but to lean on their

support systems if they needed to process what they had viewed. The trial court

also explained that the comment did not go to any issues in the case, as the

main issue was identification of the attacker, not the severity of the assault. The

court finally reasoned that by the end of the trial the jurors would have been

instructed to disregard any judicial comments on the evidence three separate

times.

The trial court also denied the motion for mistrial on the basis of Officer

Levi’s statement about Miranda warnings. The court reasoned that it sustained

the objection to the comment, instructed the jury to disregard it, and that the jury

had both received a limiting instruction telling them they were not permitted to

“speculate or consider the circumstance under which the person in the

photographs came into contact with police officers” immediately before Levi’s

5 No. 83244-1-I/6

testimony and would receive it again before deliberation.

Before deliberation, the jury instructions addressed both areas of concern.

Instruction number 1 charged “[i]f evidence was not admitted or was stricken

from the record, then you are not to consider it in reaching your verdict.”

Instruction number 7 mirrored the instruction preceding Levi’s testimony,

charging that

The still photographs marked at Exhibit 5 are being offered only for the purpose of identification. You are not to speculate or consider the circumstance under which the person in the photographs came into contact with police officers or in which the photographs were taken. Any such circumstances are relevant for purposes of this trial only in so far as you determine the evidence admitted does or does not identify Mr. Nesbit in relation to the alleged charge in this trial.

In instruction number 1, jurors were told that

Our state constitution prohibits a trial judge from making a comment on the evidence. It would be improper for me to express, by words or conduct, my personal opinion about the value of testimony or other evidence. I have not intentionally done this. If it appeared to you that I have indicated my personal opinion in any way, either during trial or in giving these instructions, you must disregard this entirely.

The jury found Nesbit guilty of assault in the second degree and found that

he was armed with a deadly weapon at the time he committed the assault.

Nesbit now appeals arguing that the trial court abused its discretion in denying

his motions for a mistrial based on the judicial comment and mention of Miranda

warning.

DISCUSSION

Standard of Review

“Decisions involving evidentiary issues lie largely within the sound

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discretion of the trial court and ordinarily will not be reversed on appeal absent a

showing of abuse of discretion.” State v. Nava, 177 Wn. App. 272, 289, 311 P.3d

83 (2013). “Under an abuse of discretion standard, the reviewing court will find

error only when the trial court’s decision (1) adopts a view that no reasonable

person would take and is thus ‘manifestly unreasonable,’ (2) rests on facts

unsupported in the record and is thus based on ‘untenable grounds,’ or (3) was

reached by applying the wrong legal standard and is thus made ‘for untenable

reasons.’” State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012)

(internal quotation marks omitted) (quoting State v. Rohrich, 149 Wn.2d 647,

654, 71 P.3d 638 (2003)).

Miranda Testimony

Nesbit asserts that the trial court abused its discretion in failing to grant his

motion for a mistrial following an officer’s testimony that he was read Miranda

rights. Nesbit contends that this statement was so prejudicial that it could not be

cured by instruction and required a new trial. We disagree.

In this case, the prosecution sought to admit evidence of Nesbit’s

interaction with Kent police officers prior to the assault on the bus to prove his

identity. While evidence of other crimes, wrongs, or acts are inadmissible to

prove character or propensity to commit a crime, it is admissible for other

purposes, including identity. ER 404(b). Nesbit moved in motions in limine to

exclude the entire episode in Kent. The court limited testimony about the Kent

interaction to the fact the officer encountered Nesbit, questioned him, and Nesbit

provided his name. Given Nesbit’s motion was to exclude the entire encounter, it

7 No. 83244-1-I/8

follows that the court’s ruling restricted testimony as to only what the court stated

could be admitted.

Violating a ruling in limine generally amounts to a serious trial

irregularity. State v. Thompson, 90 Wn. App. 41, 46, 950 P.2d 977 (1998).

A trial court has broad discretion to rule on irregularities during trial because it is

in the best position to determine whether the irregularity caused prejudice. State

v. Wade, 186 Wn. App. 749, 773, 346 P.3d 838 (2015); State v. Lewis, 130

Wn.2d 700, 707, 927 P.2d 235 (1996). A trial court should grant a mistrial when

an irregularity in the trial proceedings is so prejudicial that it deprives the

defendant of a fair trial. State v. Babcock, 145 Wn. App. 157, 163, 185 P.3d

1213 (2008). We consider three factors to determine whether an irregularity

warrants a new trial: (1) the seriousness of the irregularity, (2) whether the

statement was cumulative of other properly admitted evidence, and (3) whether

an instruction could cure the irregularity. State v. Perez-Valdez, 172 Wn.2d 808,

818, 265 P.3d 853 (2011).

In context, the mention of Miranda did not amount to a serious trial

irregularity that is so prejudicial it required a mistrial. Thompson, 90 Wn. App. at

46. The witness gave improper testimony, but the trial court did not admit it and

immediately instructed the jury to disregard the testimony, followed by additional

curative instruction before deliberation began.

Prior to hearing from Levi, the jury was instructed that they were “not to

speculate or consider the circumstance under which the person in the

photographs came into contact with police officers, or in which the photographs

8 No. 83244-1-I/9

were taken” and that they were only to determine whether or not the evidence

identified Nesbit.

During his testimony, Levi did not testify about why he was interacting with

Nesbit, whether Nesbit was restrained during the interaction, or whether Nesbit

was arrested. When asked how he learned Nesbit’s name, Levi stated “during

the course of our interaction, he provided his name and date of birth to me

following Miranda being read to him.” The defense objected and moved to strike,

which the trial court sustained and granted. The trial court then immediately

instructed the jury to disregard the reference to Miranda. Levi then testified that

after their interaction Nesbit was permitted to go about his business and “left the

premises of where we had contacted him.” This testimony would prevent any

juror from concluding that Nesbit had engaged in wrongful behavior that led to an

arrest.

Before deliberation, the jury was instructed “[i]f evidence was not admitted

or was stricken from the record, then you are not to consider it in reaching your

verdict.” They were again instructed that they were not to “speculate or consider”

why Nesbit had come into contact with Kent Police earlier in the day and that this

evidence was for the limited purpose of identification of Nesbit.

Juries are presumed to follow all instructions that the trial court gives to

them. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). Even if the

testimony about Miranda warnings created a risk of prejudice, the court’s oral

instructions at the time it sustained the objection and the written trial instructions

cured the irregularity.

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Judicial Comments

Nesbit next argues that in admonishing the jury that they may find some

parts of the video evidence “disturbing,” the trial court unconstitutionally

commented on the evidence necessitating reversal of the conviction. We

disagree.

Trial judges are constitutionally prohibited from commenting on evidence.

CONST. art. IV, § 16. The purpose of this rule is to prevent the jury from being

influenced by a trial judge’s personal opinion on the credibility, weight, or

sufficiency of the evidence. State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1

(1970). To be a comment on the evidence, it must appear that the trial court’s

attitude toward the merits of the case is reasonably inferable from the nature or

manner of the court’s statements. State v. Lane, 125 Wn.2d 825, 889 P.2d 929

(1995). A judge’s opinion may be conveyed directly or by implication, based on

the particular facts and circumstances of the case. Jacobsen, 78 Wn.2d at 495.

Here, Nesbit argues that when the trial court told the jury “there may be

some things in today’s video that are disturbing and will stick with you” before

admonishing them not to discuss the case outside of court it amounted to a

comment on the evidence prohibited by article IV, § 16. Nesbit asserts that this

conveyed to the jury that the conduct amounted to assault in the second degree,

rather than the lesser included offense of assault in the fourth degree.

However, the distinguishing factor between assault in the second degree

with a deadly weapon and assault in the fourth degree is not simply the severity

or how “disturbing” the assault was to viewers. To convict of assault in the

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second degree, as charged here, the State must prove that the defendant

assaulted another person with a deadly weapon. RCW 9A.36.021. The jury was

instructed that to convict Nesbit of this offense they must find beyond a

reasonable doubt that:

(1) [O]n or about March 22, 2020, the defendant assaulted John Doe, an unknown person, with a deadly weapon: to wit, a hammer; and

(2) That this act occurred in the State of Washington.

The jury was also instructed that if they did not find beyond a reasonable

doubt that the defendant was guilty of assault in the second degree, they should

consider assault in the fourth degree. They were instructed that to convict of

assault in the fourth degree, they must find beyond a reasonable doubt that:

(1) [O]n or about March 22, 2020, the defendant assaulted John Doe, an unknown person; and

The distinguishing factor at issue in this case is the use of a deadly

weapon, not the severity of the assault.

The trial judge’s remark here was not an unconstitutional comment on the

evidence. The judge made no remark on the presence of a deadly weapon or

whether an assault occurred. The judge only stated that the jury may find some

parts of the video evidence “disturbing” and that they should lean on their support

systems if they found it difficult to deal with. This statement did not convey the

trial court’s personal opinion on the credibility, weight, or sufficiency of the

evidence and was not unconstitutional. As noted by the State, and reflected in

the record, Nesbit’s own defense attorney began opening argument with

11 No. 83244-1-I/12

“Well, let’s just be straight up with each other from the start. Okay? You’re gonna [sic] see a video of an attack that happened on the bus. The video is disturbing.”

In a similar unpublished case, this Court found that where a trial court

warned the jury that photograph exhibits of a domestic violence victim’s injury

were “somewhat graphic” and that jurors “may want to look at it quickly or not at

all” did not rise to the level of an impermissible comment because they did not go

to the weight, credibility, sufficiency, or materiality of the evidence. State v. Tek,

No. 42227-1-II, slip op. at 9 (Wash. Ct. App. Apr. 23, 2013) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2042227-1-

II%20%20Unpublished%20Opinion.pdf. There the court noted that the

statements “did not indicate that the photo was more or less important or

probative, rather only that it was potentially disturbing to observe” which was not

an issue at trial. Tek, No. 42227-1-II, slip op. at 9. The court stated “it is more

likely that the judge – like most people – was cautious of others’ sensitivity to

blood and exposed tissue.” Tek, slip op. at 9. This is analogous to this case,

where whether the assault was “disturbing” was not at issue, but the judge

appears to have been concerned about the effect the video of the assault would

have on the jurors.

The trial court’s comment did not amount to an unconstitutional judicial

comment on the evidence. Whatever risk that the jury could view it as such was

cured with jury instruction number 1 advising that it would be improper for the

judge to express the judge’s personal opinion about the value of evidence, that

the judge did not intentionally do so, and that the jury should disregard it if it

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appeared to the jury the judge had done so.

CONCLUSION

The trial court did not abuse its discretion in denying Nesbit’s motions for a

mistrial.

We affirm.

WE CONCUR: