State v. Stark

334 P.3d 1196, 183 Wash. App. 893

• Court: Court of Appeals of Washington
• Decided: October 7, 2014
• Docket: No. 31215-1-III
• Status: Published

Opinions

Brown, J.

¶1 Shellye Stark appeals her first degree murder conviction, mainly contending the trial court erred by denying her a public trial when asking spectators not to come and go during closing arguments to avoid disruption. We conclude no closure occurred. She next contends the court erred in allowing impermissible opinion evidence.¹ We disagree. Finally, the State correctly concedes the court erred when imposing a community custody condition requiring Ms. Stark to undergo a mental status evaluation because under RCW 9.94B.080, it is unsupported in the record. We remand for the trial court to strike the community custody condition. See State v. O’Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008). Accordingly, we affirm and remand.

FACTS

¶2 Early on December 9, 2007, Ms. Stark shot and killed her estranged husband, Robert Stark, at their Spokane home.² This court overturned her earlier first degree murder conviction because sufficient evidence did not support the trial court’s jury instructions. State v. Stark, 158 Wn. App. 952, 244 P.3d 433 (2010). Generally, at her second trial on the same charge, Ms. Stark related the shooting followed a history of physical and emotional abuse by Mr. Stark. She asserted self-defense, claiming he attacked her shortly after he had been served with divorce papers.

¶3 Ms. Stark left Mr. Stark months before these events. Once a month, when Mr. Stark was away, Ms. Stark would return to Spokane to be with her son, Chris. In December 2007, Ms. Stark returned to Spokane intending to serve Mr. Stark with divorce papers she thought were more equitable than an earlier arrangement. Ms. Stark obtained a temporary restraining order and planned to serve Mr. Stark at their Spokane home. Anticipating an angry response from Mr. Stark, Ms. Stark asked her sister, Jacquette Johnson, to bring her a gun; however, Ms. Johnson was injured in an accident when driving to Spokane with a pistol and shotgun. Ms. Johnson was taken to a Spokane hospital. An officer released the pistol and shotgun to Ms. Johnson’s son, Dale.

¶4 On December 8, Dale gave the unloaded pistol to Ms. Stark and agreed to serve Mr. Stark with the restraining order that night. Dale, Chris, and Ms. Stark went to the Starks’ home to wait for Mr. Stark. While Chris slept on the couch, Ms. Stark talked with Dale. As they talked, the gun, by then loaded, sat on the kitchen table. According to Dale, the plan was for him to serve Mr. Stark with the restraining order outside and then take Chris back to the hospital while Ms. Stark would remain at the residence to ensure Mr. Stark did not return. Ms. Stark anticipated Mr. Stark would return home around 3:00 a.m., but he returned home at 1:00 a.m., surprising Dale, Chris, and Ms. Stark.

¶5 Mr. Stark asked, “ ‘Shellye, what are you doing here?’ ” Report of Proceedings (RP) at 321. Dale walked past Mr. Stark toward the door and asked him to step outside where he planned to serve the restraining order. Mr. Stark refused. Ms. Stark told Dale to just serve him while he was inside the house. Dale did and told Mr. Stark to leave the house and give him his car keys. Surprised, Mr. Stark asked Chris if he knew anything about this. Chris froze. From the kitchen, Ms. Stark told Chris and Dale to get out of the house. Seconds later, as Chris and Dale began down the steps they heard gunshots.

¶6 According to Ms. Stark, after Chris and Dale left, Mr. Stark angrily charged into the kitchen, threatening to kill her. Mr. Stark reached and possibly touched a knife left on the counter when Ms. Stark pulled the gun she had hidden behind her back, aimed, and fired three times. Ms. Stark tried to step over Mr. Stark, but he kicked her as she did. Then, Ms. Stark, in fear, fired the gun until it was empty. Ms. Stark called 911.

¶7 At least five shots hit Mr. Stark, four in the back. Detective Kip Hollenbeck interviewed Ms. Stark at the police station, reading her rights at 3:09 a.m. that morning. Ms. Stark ended the interview at 3:21 a.m., but according to the detective, before that, she related she shot Mr. Stark when he looked at the knife. And, Ms. Stark never told the detective Mr. Stark touched or grabbed the knife she had left on the counter, a position she later took at trial. Focusing on this discrepancy, defense counsel asked the detective during his rebuttal testimony whether it was possible Ms. Stark did not mention Mr. Stark touching the knife because the interview lasted but 12 minutes. Ms. Stark now challenges Detective Hollenbeck’s testimony and the following follow up exchange as improper opinion testimony on her guilt or veracity:

Q: So there were probably a lot of things that you were not told that morning by Ms. Stark?

A: That’s accurate, yes.

Q: So, not having mentioned the knife is just one of them, possibly?

A: Well, she told me that he looked at the knife and she thought he was going to go for the knife, so she took out her gun and shot him.

Q: Fair enough. Isn’t it common in many situations you interview an individual multiple times before you actually take a complete statement?

A: It depends on the scenario. But, yes, we get as many interviews as we can to collect as much information as we can.

Q: And the process, when you finally give somebody their rights, that last statement may be much more detailed?

A: It depends on the individual and what she wants to tell us. Q: And the officer?

A: Well, the officer is trying to glean information. It’s not up to us what we are being told. We’re hoping that it’s the truth, but —

Q: Isn’t part of the purpose that the repeated interviews is to get the information so that when you get the final statement, it has everything that you believe is necessary?

A: I’m not sure I understand your question. What I believe you’re asking me is if what we typically do, if a participant is willing, we’ll talk to them as much as we can, because any information we get is helpful. In this case, we weren’t afforded that opportunity.

Q: And at the point where the conversation was terminated — let me make sure I don’t ask this confusing, so give me a minute to form it. I’m assuming there had not been a lot of rapport established to where conversation could be more free-flowing. Obviously, it stopped rather abruptly?

A: Shellye Stark told me what she wanted me to hear and then the conversation was ended.

[Defense counsel]: Objection, Your Honor. I would ask that be stricken. That’s an opinion.

The Court: I’m not going to strike it. I mean, you can ask him to clarify it. I’m not striking it. Your objection is preserved.

[Defense counsel resuming questioning]: You knew what was in Ms. Stark’s mind?

A: No, I didn’t know what was in her mind.

Q: So what you know is what she told you?

A: Yes.

RP at 785-87.

¶8 Regarding Ms. Stark’s closed courtroom and public trial concerns, the trial court stated before closing arguments:

I ask all the spectators, I don’t really want people coming or going during closings, so if you don’t think you can last the morning, you might want to rethink being in here, unless you really need to. It’s just very disruptive.

RP at 891.

¶9 The jury found Ms. Stark guilty of first degree murder and specially found she had been armed with a firearm, leading to a minimum of 300 months’ confinement. She was ordered to undergo an evaluation for mental health treatment. Ms. Stark appealed.

ANALYSIS

A. Public Trial

¶10 The issue is whether the trial court erred by violating Ms. Stark’s public trial rights when cautioning the spectators not to be disruptive by coming or going during closing arguments. Ms. Stark contends the trial court’s statement to spectators before closing arguments amounted to a closure. We review alleged public trial violations de novo. State v. Wise, 176 Wn.2d 1, 9, 288 P.3d 1113 (2012) (citing State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006)).

¶11 Defendants have a constitutional right to a public trial. Const. art. I, § 22; U.S. Const. amend. VI. While our Supreme Court has not considered whether the public trial rights under the state and federal constitutions are coequal, “[t]he Washington Constitution provides at minimum the same protection of a defendant’s fair trial rights as the Sixth Amendment.” State v. Bone-Club, 128 Wn.2d 254, 260, 906 P.2d 325 (1995).

¶12 “A public trial helps assure that the trial is fair; it allows the public to see justice done, and it serves to hold the justice system accountable.” Wise, 176 Wn.2d at 17 (citing Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)). “ ‘Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.’ ” Waller, 467 U.S. at 46 n.4 (quoting Estes v. Texas, 381 U.S. 532, 588, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965) (Harlan, J., concurring)).

¶13 “[W]hile openness is a hallmark of our judicial process,” a defendant’s right to a public trial sometimes must give way to other rights and considerations. Wise, 176 Wn.2d at 9-10 (citing Waller, 467 U.S. at 45, 48 (noting “the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information” and “privacy of persons not before the court”); State v. Momah, 167 Wn.2d 140, 152, 217 P.3d 321 (2009) (noting the right to an impartial jury); Federated Publ’ns, Inc. v. Kurtz, 94 Wn.2d 51, 55-56, 615 P.2d 440 (1980) (noting pretrial publicity of a suppression hearing may prejudice a defendant’s fair trial right)). In Bone-Club, our Supreme Court “enumerated five criteria that a trial court must consider on the record in order to close trial proceedings to the public.” Id. at 10 (citing Bone-Club, 128 Wn.2d at 258-59).

“1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a ‘serious and imminent threat’ to that right.

“2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.

“3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.

“4. The court must weigh the competing interests of the proponent of closure and the public.

“5. The order must be no broader in its application or duration than necessary to serve its purpose.”

Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993) and citing Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36-39, 640 P.2d 716 (1982); Kurtz, 94 Wn.2d at 62-65).

¶14 A defendant whose trial is closed without considering the Bone-Club factors has been deprived of his or her public trial right. Such a deprivation “is a structural error presumed to be prejudicial.” Wise, 176 Wn.2d at 14 (citing Easterling, 157 Wn.2d at 181; In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004); Bone-Club, 128 Wn.2d at 261-62). The remedy is a new trial. See, e.g., id. at 14-15, 19; State v. Paumier, 176 Wn.2d 29, 35-37, 288 P.3d 1126 (2012).

¶15 We first decide if the trial court’s statement before closing arguments amounted to a closure. “[A] closure ‘occurs when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave.’ ” State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012) (plurality opinion) (quoting State v. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011)). Contrary to Ms. Stark’s closure contention, the State aptly argues the court asked that present spectators remain in court for the duration of the closing statements but, if they could not, that they exercise good judgment in leaving from and returning to the courtroom.

¶16 Closures have been found when the public was fully excluded from the proceedings; when voir dire was closed to all spectators; when jurors were privately questioned in chambers; and when a codefendant, his counsel, and all spectators were excluded from the courtroom while a separate codefendant plea bargained. Bone-Club, 128 Wn.2d at 257; Orange, 152 Wn.2d at 807-08; State v. Brightman, 155 Wn.2d 506, 511, 122 P.3d 150 (2005); Easterling, 157 Wn.2d at 172; Momah, 167 Wn.2d at 146. Our Supreme Court held no court closure occurred when a defendant’s daughter was excluded from court. Lormor, 172 Wn.2d at 93.

¶17 Here, like in Lormor, our focus is whether the plain language of the trial court’s request “completely and purposefully closed [the courtroom] to spectators so that no one may enter and no one may leave.” Id. Contrary to Ms. Stark’s arguments, the court’s choice of language suggests the court did not “completely” or “purposefully” close the proceedings. Id. First, the court did not tell spectators they could not come and go. The court “ask[ed] all spectators” not to come and go during the closings. RP at 891. Generally, we reason a request to minimize disruptive behavior is not a closure. Second, even assuming the court’s request indicated an intent to close the court, it would not be a complete closure. The court directed its request solely to those who “don’t think [they] can last the morning.” RP at 891. Third, and most important, the court expressly permitted spectators to come and go if they “really needfed] to.” RP at 891.

¶18 Considering all, we reason the court did not intend to close the court. Instead, we conclude the court’s purpose was, as it explained, limiting disruption. Accordingly, we hold the trial court did not violate Ms. Stark’s public trial rights and, therefore, did not err when admonishing the spectators to limit disruptive behavior.

B. Detective Hollenbeck’s Testimony

¶19 The issue is whether the trial court erred when refusing to strike Detective Hollenbeck’s response to Ms. Stark’s counsel during rebuttal cross-examination. Ms. Stark contends the detective impermissibly opined on her guilt or veracity when testifying, “Shellye Stark told me what she wanted me to hear and then the conversation was ended.” RP at 786. We review the court’s decision to admit or exclude evidence for an abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001) (plurality opinion). A court abuses its discretion when its decision is manifestly unreasonable or is based on untenable reasons or grounds. State v. Montgomery, 163 Wn.2d 577, 597, 183 P.3d 267 (2008).

¶20 “Generally, no witness may offer testimony in the form of an opinion regarding the veracity of the defendant. Such testimony is unfairly prejudicial to the defendant because it invades the exclusive province of the jury.” State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). To determine if a witness’s testimony constitutes improper opinion testimony, we consider the type of witness, the specific nature of the testimony, the nature of the charges, the type of defense, and other evidence before the trier of fact. Montgomery, 163 Wn.2d at 591. When it is a police officer who opines impermissibly, it “raises additional concerns because ‘an officer’s testimony often carries a special aura of reliability.’ ” State v. Rafay, 168 Wn. App. 734, 806, 285 P.3d 83 (2012) (quoting Kirkman, 159 Wn.2d at 928).

¶21 Charged with first degree murder, Ms. Stark contends she shot her husband in self-defense. She argues Detective Hollenbeck “essentially testified that [her] self-defense claim was fabricated.” Appellant’s Br. at 13. The State points out the detective did not “directly” comment on the defendant’s guilt or veracity. Resp’t’s Br. at 9-10. The State argues Detective Hollenbeck’s testimony was a permissible statement based on an inference from the evidence gained from his interview with Ms. Stark. Testimony based on inferences from the evidence do not constitute impermissible opinion testimony when the witness “does not comment directly on the defendant’s guilt or on the veracity of a witness, and is otherwise helpful to the jury.” Rafay, 168 Wn. App. at 806 (citing City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993)).

¶22 Detective Hollenbeck’s testimony is not impermissible opinion testimony because he properly offered an inference gleaned from his interview and the answer was responsive to defense interrogation during rebuttal cross-examination. The detective testified on direct examination that in his interview with Ms. Stark, she did not mention Robert grabbed the knife. On cross, Ms. Stark’s attorney attempted to elicit testimony explaining why she may have omitted this detail. The detective drew a permissible inference that Ms. Stark told him what she wanted him to hear in his interview, and was responsive to the question asked.

¶23 “The fact that an opinion encompassing ultimate factual issues supports the conclusion that the defendant is guilty does not make the testimony an improper opinion on guilt.” Heatley, 70 Wn. App. at 579. “ ‘[I]t is the very fact that such opinions imply that the defendant is guilty which makes the evidence relevant and material.’ ” Id. (alteration in original) (quoting State v. Wilber, 55 Wn. App. 294, 298 n.1, 777 P.2d 36 (1989)). Thus, the challenged testimony is not improper because it is an inference based on evidence. Therefore, Detective Hollenbeck did not directly comment on Ms. Stark’s guilt or veracity. Accordingly, we conclude the trial court did not err in its evidence ruling.

¶24 Affirmed and remanded.

1 We do not consider Ms. Stark’s pro se statement of additional grounds for review on the same subject because under RAP 10.10(a) her appellate counsel has provided adequate briefing.

2 We use first names of same surname witnesses to avoid confusion.