In re In re Pers. Restraint Petition Rhem

In re the Matter of the Personal Restraint Petition of MICHAEL LOUIS RHEM, Petitioner.

No. 35195-1-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

December 22, 2015

UNPUBLISHED OPINION

JOHANSON, C.J. — Michael Rhem seeks relief from personal restraint imposed following his 2003 jury trial convictions of two counts of first degree assault, each with firearm sentencing enhancements, and one count of first degree unlawful possession of a firearm (UPF). He argues that (1) the trial court violated his public trial right¹ under the Washington State Constitution by excluding his family members and others during jury voir dire and during trial without firstconsidering the Bone-Club² factors,³ (2) the trial court's orders in limine were violated several times when witnesses and counsel referred to Rhem's possession of a firearm not involved in the current offenses and to his first jury trial, and (3) the admission of his co-defendant's statements were improper under Bruton.⁴ In an amended petition, he raises several sentencing issues and argues that imposing the firearm enhancements on the assaults constitutes double jeopardy because the use of a firearm was an element of the assaults. Respondent argues that we should remand for the trial court to correct certain scrivener's errors on Rhem's judgment and sentence. We deny Rhem's personal restraint petition (PRP) and deny Respondent's request to remand for correction of the judgment and sentence.

FACTS

I. BACKGROUND FACTS

The two first degree assaults and the UPF conviction arose out of an alleged retaliatory gang-related shooting that took place in an alley behind Ash Street in Tacoma on August 21, 1999. State v. Wynn, noted at 126 Wn. App. 1008, 2005 WL 470049, at *1-2; State v. Rhem, noted at 112 Wn. App. 1034, 2002 WL 1481272, at *1. The two assault victims were Michael Rollins and Kimberly Matthews.

Based on the Ash Street shooting, the State charged Rhem and Kimothy Wynn each with two counts of first degree assault and one count of drive-by shooting. Rhem, 2002 WL 1481272,at *1. It also charged Rhem with two counts of first degree UPF and three additional counts of first degree assault based on the events that preceded the Ash Street shooting. Rhem, 2002 WL 1481272, at *1.

The State's theory was that the Ash Street shooting was among a string of shootings that were in retaliation for Rollins's failure to assist Rhem and Digno DeJesus, both Crip gang members, during a fight with Rodney Hebert and Chris Meza, both Blood gang members, that occurred in late July 1999. According to the State, after the July incident, on the afternoon of August 21, Hebert and Rollins were driving near South 23rd and Wilkeson Streets when Rhem shot at Hebert's car. Randall Henderson, who was also a Crip, and DeJesus stated that Rhem told them he had done the Wilkeson Street shooting.

At about 9:25 PM that same night, several shots were fired into a crowd attending a barbecue at Wynn's aunt's house; Wynn and Rhem were among the barbecue attendees. The Ash Street shooting then occurred at about 11:15 PM. A few hours later, Rhem and Wynn were injured in another shooting at a local gas station. The State also asserted that Rhem and Wynn shot at Larry Glover's home on September 28.

II. FIRST TRIAL AND FIRST APPEAL

Rhem pleaded guilty to one of the first degree UPF charges.⁵ Rhem and Wynn went to trial on the remaining charges. Rhem, 2002 WL 1481272, at *2.

In July 2000, a jury convicted Rhem and Wynn each of two counts of first degree assault and one count of first degree UPF.⁶ Rhem, 2002 WL 1481272, at *1. We reversed these convictions and remanded for further proceedings. Rhem, 2002 WL 1481272, at *1. We affirmed the UPF conviction to which Rhem had pleaded guilty. Rhem, 2002 WL 1481272, at *11.

During the first trial, the defendants had moved to exclude any references to the fact they were known to always carry guns. Rhem, 2002 WL 1481272, at *6. Citing ER 404(b) and ER 406, the trial court admitted testimony from DeJesus and Henderson that they had seen the defendants with "'a gun on a regular basis.'" Rhem, 2002 WL 1481272, at *6.

On appeal, we characterized this evidence as "evidence of habit" and held that admission of this evidence was harmful error.⁷ Rhem, 2002 WL 1481272, at *7-8. We did not consider whether evidence of individual instances of firearm possession would be admissible.

III. SECOND TRIAL AND SECOND APPEAL

On remand, the State recharged Rhem and Wynn each with two counts of first degree assault with firearm sentencing enhancements and one count of first degree UPF. Wynn, 2005 WL 470049, at *2. The case proceeded to a joint jury trial in January 2003.

A. VOIR DIRE/EXCLUSION OF FAMILY AND OTHERS

During some of the preliminary hearings, the State moved to exclude any children from the courtroom. Acknowledging that it was an open courtroom, the trial court denied the motion.2 Report of Proceedings (RP) at 74.⁸ But the court also spontaneously announced that when jury selection started and the jury panel arrived, the courtroom would be too crowded so the courtroom would be "available only for jurors." 2 RP at 75. The trial court specifically stated that the defendant's "family members" would have to "wait outside" until some of the potential jurors were dismissed. 2 RP at 75.

The full jury voir dire has not been transcribed and nothing in the record expressly states whether the public was prevented from entering the courtroom during voir dire. But at some point during voir dire, a juror complained about noises or "disturbance[s]" coming from the hallway outside of the courtroom and jail personnel commented that the defendants' families were "waving hi and holding up the baby through the window." 2 RP 151-52. Rhem's and Wynn's counsels told the trial court that they had told the defendants' family members not to return until the next day because the jury would not be impaneled until then. Voir dire continued the next day and was not transcribed. The record does not show whether or when the public or the defendants' families were allowed into the courtroom.

Later, after the testimony had begun, the trial court commented that the door to the courtroom had been posted with a notice that "people aren't to be coming in, except at a normal break." 5 RP at 391. The court then directed the unnamed individuals who had just entered the courtroom to leave and advised them that they were "welcome at the break." 5 RP at 391.

B. ORDERS IN LIMINE

In a pretrial hearing, over the defendants' objections, the trial court ruled admissible evidence that both defendants had possessed 9 mm and .45 caliber handguns on specific occasions before and after the date of the alleged shooting. See Wynn, 2005 WL 470049, at *2. The trial court later clarified that it was excluding references to general firearm possession and to evidence that either defendant had possessed a 10 mm firearm.

The parties and the trial court also discussed how to handle potential references to the previous trial. The trial court stated that both parties were "prohibited from saying what happened in the prior trials" and asked counsel how they wanted to handle any "mention of previous testimony." RP (Jan. 10, 2003) at 45-46. Wynn's counsel stated that he preferred the phrase "[p]revious testimony." RP (Jan. 10, 2003) at 46. The trial court also asked counsel to admonish the witnesses not to say things like "'[w]ell, at the first trial.'" RP (Jan. 10, 2003) at 46.

C. TESTIMONY

Over the course of seven days, the jury heard testimony from 24 witnesses. Throughout the trial, there were numerous references to "earlier proceeding[s]" (4 RP at 342), "prior proceeding[s]" (4 RP at 349; 5 RP at 433; 6 RP at 605-06, 622-23), previously "being in court testifying" (4 RP at 359), "prior" or "previous[ ]" testimony (5 RP at 379, 429, 452; 6 RP at 627, 645), and "prior court hearing[s]" (5 RP at 494) as various witnesses either refreshed their memories or were impeached with transcripts from prior proceedings. But on three occasions, one witness, Henderson, referred to the prior trial. Rhem's counsel also referred to the "last trial" ontwo occasions.⁹ 5 RP at 500; 6 RP at 609. And Wynn's counsel mentioned prior testimony "in this case" once.¹⁰ 6 RP at 620.

Also throughout the trial, the jury heard testimony about Rhem and Wynn possessing 9 mm or .45 caliber firearms. The only testimony referring to Rhem possessing a 10 mm firearm was Henderson's testimony that Rhem had possessed and fired "a Smith & Wesson 10 mm" during the September 1999 incident at Glover's home.¹¹ 6 RP at 584.

D. WYNN'S REDACTED STATEMENT

Well into the trial, Rhem's counsel also argued that Wynn's redacted statement,¹² which he gave to Detective Tom Davidson, violated Bruton. The trial court approved of the redactions.

No transcript of the redacted statement was admitted at trial. Instead, Detective Davidson testified about Wynn's statement.¹³

E. VERDICT AND SENTENCE

The jury found Rhem guilty of two counts of first degree assault, each with a firearm sentencing enhancement, and one count of first degree UPF.

At sentencing, the trial court found that Rhem's offender scores were 9 points for the first assault and the UPF conviction; the offender score for Rhem's second assault conviction was zero.¹⁴ The court did not consider any of Rhem's current offenses to be same criminal conduct.

At the sentencing hearing, the trial court announced it was imposing the same sentences that the previous court had imposed. The prior judgment and sentence had imposed the following sentences: (1) 318 months on the first assault conviction, (2) 123 months on the second assault conviction, (3) 116 months on the UPF conviction to which Rhem pleaded guilty, (4) 116 months on the second UPF conviction, and (5) two 60-month firearm sentencing enhancements on the assault convictions. The first court imposed the second first degree assault sentence consecutive to the first assault conviction and...