IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON ) No. 65334-2-I ) Respondent, ) DIVISION ONE v. ) ) UNPUBLISHED OPINION Antonnio Marquis Smith ) ) Appellant. ) FILED: November 7, 2011 Schindler, J. Antonnio Marquis Smith appeals his conviction for felony violation of a no-contact order. Smith argues the trial court s failure to provide notebooks to the jury until after the testimony of the first witness was an improper comment on the evidence that deprived him of a fair trial as well as a serious irregularity that warrants a new trial. We affirm. FACTS On June 30, 2009, the court entered a no-contact order prohibiting Antonnio Marquis Smith from contacting Kerrainn Crudup for two years. Two months later, on the evening of August 30, Smith was outside his cousin s apartment in Kent when Crudup drove up in her car. At the time, Crudup was approximately six months pregnant. After Crudup and Smith got into an argument, Crudup got back in her car and drove to the Fred Meyer located a few blocks away. Smith and his cousin followed Crudup to the Fred Meyer parking lot. Smith and Crudup continued to argue. Smith
No. 65334-2-I/2 grabbed Crudup and began choking her. Smith then left with his cousin. Jordan Coughlin and Mark Guisasola were walking in the Fred Meyer parking lot to Guisasola s car while Smith and Crudup were arguing and yelling at each other. As Coughlin and Guisasola drove out of the lot, Coughlin called 911. Fred Meyer employee Christopher Kahley saw Smith and Crudup yelling at each other while he was on break in the parking lot. Kahley called 911 when Smith began choking Crudup. City of Kent Police Officer Travis Wilson arrived at the Fred Meyer about 10 minutes after the first 911 call from Coughlin. Crudup told Officer Wilson that Smith had choked her. Crudup and Kahley described Smith and what he was wearing. After checking the police computer database, Officer Wilson learned that there was a nocontact order in effect that prohibited Smith from contacting Crudup. Officer Wilson arrested Smith at his cousin s apartment. The State charged Smith with domestic violence felony violation of a no-contact order (FVNCO). The information alleged that Smith did know of and willfully violate the terms of a court order issued on June 30, 2009... for the protection of Kerrainn Crudup, by intentionally assaulting Kerrainn Crudup. At a pretrial hearing on January 21, 2010, the court told the parties that the jury would be allowed to take notes during the trial. After swearing in the jury on January 27, the court informed the jury they would be allowed to take notes. 1 Late in the 1 The jury instruction on note-taking states, in pertinent part: You will be allowed to take notes during the trial. Whether or not you do so is entirely your own decision. If you do choose to take notes, you should make sure that it does not interfere with your ability to listen to and observe the witnesses. At an appropriate time, the bailiff will provide a note pad and a pen or pencil to each of you. Your juror number will be on the front page of the note pad. You must take notes on this pad only, not on any other paper. You must not take your note pad from the courtroom or the jury room for any reason. 2
No. 65334-2-I/3 afternoon on January 27, the State called Kahley as its first witness. However, the court did not pass out notebooks to the jury. Kahley testified that the man and woman were screaming and yelling and that he called 911 once the man began throttling the woman. Kahley said that the man was choking [the woman] back and forth. Kahley identified the man as [l]ight skinned African American, 5 10, stocky, and wearing a striped shirt and black hat. Kahley said that Smith looked familiar but he was not certain Smith was the man he saw in the Fred Meyer parking lot. Before the trial resumed the next day, defense counsel pointed out that the court had not provided notebooks to the jury the day before when Kahley testified. Defense counsel asked the court to not provide notebooks to the jury during the testimony of the other witnesses. The court denied the request: [F]rom the Court s perspective we want to give as many tools to the trier of fact as possible.... [T]he Court, as a trier of fact, has access to realtime, LiveNote, and uses a computer taking notes consistently, so I want to give them that opportunity. Your objection is noted, however. The court provided notebooks to the jury before the other witnesses testified. The record does not indicate that the court said anything to the jury about the failure to provide notebooks during Kahley s testimony the day before. The State called Guisasola, Coughlin, and Officer Wilson to testify on January 28. Crudup did not testify. Guisasola testified that he saw a man in a striped shirt, whom he identified as Smith, yelling at a woman. Guisasola said he did not see the man strangling the 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.01, at 7 (3d ed. 2008). 3
No. 65334-2-I/4 woman. Coughlin testified that he saw an African-American man arguing with and yelling at a woman, and that he called 911 because it was gettin[g] out of hand. Coughlin said that he did not see the man and woman physically fighting. Officer Wilson testified that Crudup identified Smith and was upset and angry. Officer Wilson said that when he arrested Smith, he was wearing a striped shirt and had a black hat. Officer Wilson testified that after reading Smith his Miranda 2 rights, Smith admitted arguing with Crudup at his cousin s apartment and following her to the Fred Meyer parking lot, and that he had continued to argue with her in the parking lot. Smith also admitted that he grabbed Crudup by her clothes and shook her. The State also introduced into evidence a certified copy of the no-contact order and a recording of Kahley s 911 call. Before playing the recording of Kahley s 911 call, the State provided the jurors with a transcript of the call. In the 911 call, Kahley tells the operator that he is outside the Fred Meyer in Kent and an African-American man is pushing around an African-American woman pretty hard. Kahley also says the man had a medium build and was in his late 20s to early 30s, 5 8 to 5 11, and wearing a striped shirt and a black hat. The defense did not call any witnesses to testify. In closing, the defense argued that the State did not prove beyond a reasonable doubt that Smith was the man arguing with the woman in the parking lot and that the State therefore could not prove that Smith violated the no-contact order. The jury convicted Smith of FVNCO. The court sentenced Smith to a standard range sentence and issued a no-contact order prohibiting Smith from contact with 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4
No. 65334-2-I/5 Crudup for five years. ANALYSIS Comment on the Evidence Smith claims that providing notebooks to the jury after the first witness testified was an improper judicial comment that violated his constitutional right to a fair trial. The Washington State Constitution prohibits a judge from conveying to the jury his or her personal attitudes toward the merits of the case. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). Article IV, section 16 states that [j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law. Const. art. IV, 16. The prohibition applies to words or actions which have the effect of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight or sufficiency of some evidence introduced at the trial. State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). The court s statements or actions are comments on the evidence if, from their nature or manner, the jury may reasonably infer the court s attitude toward the merits of the case. State v. Elmore, 139 Wn.2d 250, 276, 985 P.2d 289 (1999). We look to the facts and circumstances in each case to determine whether the judge s words or actions amount to a comment. Jacobsen, 78 Wn.2d at 495. A comment may be express or implied. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). [T]he burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted. Levy, 156 Wn.2d at 725. 5
No. 65334-2-I/6 There is no dispute that the court did not provide the jurors with notebooks before Kahley testified on January 27. There is also no dispute that the jury received notebooks before the other witnesses testified the next day. But the record shows the court made no comment to the jury about the failure to provide the notebooks for the first witness. The jury could not reasonably infer the court s personal attitude about Kahley s testimony from the nature or manner of the court s oversight in neglecting to pass out notebooks on January 27. The oversight did not convey to the jury the court s opinion about Kahley s testimony and was not an improper judicial comment depriving Smith of a fair trial. In addition, Smith cannot show prejudice. Smith claims that the court s distribution of notebooks after Kahley s testimony conveyed to the jury that Kahley s testimony was less important than other witnesses testimony. But the 911 recording that was played to the jury on January 28 largely repeats Kahley s testimony at trial. Moreover, the court also instructed the jury that it had not intentionally commented on the evidence and admonished the jurors to disregard any comment it appeared to have made. Jury Instruction No. 1 states, in pertinent part: 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 instruction cured any comment the jury might have inferred. See Elmore, 139 Wn.2d at 276 (holding that instruction to disregard apparent comments cured any 6
No. 65334-2-I/7 judicial comment the jury might have inferred from the defendant s appearance in shackles). The cases Smith relies on are inapposite. In State v. James, 63 Wn.2d 71, 385 P.2d 558 (1963), the court told the jury that it had granted the prosecutor s motion to dismiss the co-defendant providing that [the co-defendant] testify fully as to all material matters within his knowledge and instructed the jury that that the co-defendant was dismissed. James, 63 Wn.2d at 74. 3 On appeal, the court held that [t]he jury could draw only one conclusion: the court was satisfied that [the co-defendant] had testified fully as to all material matters within his knowledge. James, 63 Wn.2d at 76. In State v. Vaughn, 167 Wash. 420, 9 P.2d 355 (1932), the prosecutor represented the State and also testified as a witness at trial. The court told the jury that the prosecutor wouldn t answer anything that he shouldn t. Vaughn, 167 Wn.2d at 424. On appeal, the court reversed because the remark by the judge in effect, vouched for the veracity and rectitude of the witness. Vaughn, 167 Wn.2d at 426. Serious Trial Irregularity Smith also argues that the failure to distribute notebooks was a serious trial irregularity warranting a new trial. To determine whether an irregularity requires reversal, we examine (1) its seriousness; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it. State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994) (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). Here, the failure to distribute notebooks when the first witness testified on 3 (Italics and internal quotation marks omitted.) 7
No. 65334-2-I/8 January 27 was not a serious irregularity. The 911 recording played the next day after the court passed out notebooks repeated Kahley s testimony, 4 and the trial court specifically instructed the jury to disregard entirely any conduct that somehow conveyed personal opinion by the judge. State v. Escalona, 49 Wn. App. 251, 742 P.2d 190 (1987), is easily distinguished. In Escalona, the victim violated a motion in limine prohibiting reference to the defendant s prior conviction for the same crime. The victim testified twice that the defendant has a record and had stabbed someone. Escalona, 49 Wn. App. at 255. 5 On appeal, the court held that reference to the prior conviction was particularly serious because of the paucity of credible evidence against Escalona. Escalona, 49 Wn. App. at 255-56. Here, unlike in Escalona, the evidence was overwhelming. A court order prohibited Smith from having contact with Crudup. The eyewitness testimony showed that Smith argued with Crudup and attacked her in the Fred Meyer parking lot. And Smith admitted that he grabbed Crudup and shook her. Statement of Additional Grounds In his statement of additional grounds, Smith argues the court erred in denying his motion for mistrial. In the motion for mistrial, Smith argued 1) the State did not provide him a written copy of the amended information; 2) when reading Smith his Miranda rights, Officer Wilson did not tell Smith that an attorney would be provided without cost ; 3) the jury instructions did not include willfulness as an element of FVNCO; and 4) the to convict instruction did not name Crudup as the victim of the 4 The 911 recording did not repeat Kahley s testimony only to the extent that Kahley testified that Smith strangled, chok[ed], and throttl[ed] Crudup, while in the 911 call he said only that the man was pushing the woman around pretty hard. 5 (Internal quotation marks omitted.) 8
No. 65334-2-I/9 assault. We review the denial of a motion for mistrial for abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). In the Findings and Order Denying Defendant s Motion for a New Trial, the trial court addressed each of the four grounds asserted in the motion for a new trial. The order states, in pertinent part: 1) 2) 3) 4)... The State made the motion [to amend the information] in a timely manner and the amendment... was actually endorsed by defense.... Further, at no time did the defense request a written copy of the amendment....... The lack of the words without cost does not violate the Miranda requirements. The caselaw does not require any specific language and the defendant was adequately advised of his Miranda warnings.... The defendant has argued that a new trial is warranted because the jury was not instructed that the defendant s conduct, in violation of the court order, had to be willful. However, the caselaw is clear and has previously held that a person acts willfully when a person acts knowingly....... [T]he to convict instructions must refrain from making any potential comments on factual issues.... Here, the jury instructions appropriately did not include the victim s name. We conclude the trial court did not abuse its discretion in denying Smith s motion for mistrial. We affirm. WE CONCUR: 9
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