State v. Bell

523 P.3d 847

The STATE of Washington, Respondent,

v.Justin Dominic BELL, Appellant.

No. 83387-1-I

Court of Appeals of Washington, Division 1.

Filed January 30, 2023

Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Bradley Henderson Bartlett, Snohomish County Prosecuting Attorney's, 3000 Rockefeller Ave. Ste. 504, Everett, WA, 98201-4071, Amanda Fern Esq. Campbell, Snohomish County Prosecutor's Office, 3000 Rockefeller Ave., Everett, WA, 98201, for Respondent.

PUBLISHED OPINION

Smith, A.C.J.

¶1 Justin Bell was charged with first degree assault and drive-by shooting for an attack on his coworker, Freddie Brooks, that occurred shortly after a fistfight between the two. During jury selection, the court denied Bell's request that jurors wear clear face shields rather than non-transparent face masks covering their noses and mouths. Bell contends that this denial violated his right to select an impartial jury. He also asserts that his conviction on both counts violates double jeopardy and Washington's sentencing laws because his charges were based on one underlying act. He raises sufficiency of the evidence and confrontation clause challenges in his statement of additional grounds. Finding no error, we affirm.

FACTS

¶2 Justin Bell shot Freddie Brooks several times on December 14, 2017. Earlier that day, Brooks had argued with Bell, a coworker, over a carpooling payment Brooks owed Bell. As reported by another coworker, their argument escalated and "g[ot] kind of pushy." They were told to leave their employer's building and they did, exchanging blows in the parking lot. When the fight ended, the two went their separate ways. Brooks headed to a corner store and then a bus stop with his girlfriend, Briann Jenkins, while Bell went toward his car.

¶3 As Jenkins and Brooks crossed the street to the bus stop, Jenkins heard gunshots, quickly ran towards a nearby Value Village store, and hid behind a car. Witnesses later described hearing six to eight shots. When Jenkins looked back, Brooks was crawling on the ground, hit by several bullets. A passing car transported him to the hospital, where he was treated for several potentially life-threatening bullet wounds. He recovered successfully.

¶4 Numerous individuals testified to seeing the shooting and the events surrounding it at trial. One witness, a passenger in a nearby car, testified that he heard gunfire while stopped at a light. Looking in the direction of the gunshots he saw a black four-door sedan driving erratically, swerving through traffic and cutting off other cars.¹ This witness called the police to provide updates as his girlfriend followed the car. A recording of his 911 call was admitted at trial in which he describes the first three letters of the license plate: BTB or BGB. Another witness who observed the license plate wrote down the last four numbers: 9767. Bell's registered vehicle was a 2017 Hyundai Elantra with the license plate BGB9767.

¶5 Eyewitnesses who managed to get a look at the shooter were able to match his age and race roughly with Bell's. One witness, peering into the sedan from less than a car-length away, managed to get a quick glimpse and confirmed his age and race. Another witness was only able to get a sense of his race.

¶6 Other evidence confirmed the origin of the gunshots. Most significantly, the State introduced video footage depicting the shooting and Brooks's collapse onto the ground.² This footage was then supported by eyewitness and forensic testimony and evidence. One witness, the passenger in a car located behind a vehicle he identified as a dark-colored Kia Sorento, saw the shooter's hand stretching out of the vehicle holding a gun. Still another witness, perhaps 10 or 15 feet away from the shooter's car, saw gunfire come from the driver's side window. The police used lasers to reconstruct the flight path of the fired bullets and concluded that they originated in the street.

¶7 Bell owned a firearm, a nine millimeter caliber Kahr. Casings and bullet holes found at the scene of the shooting matched this caliber. In February 2018, Bell called the Marysville Police Department to report this firearm stolen. According to the police officer who took the call, Bell said he had reached out "in case something was to be done with that pistol" and demonstrated concern that "if a crime [occurred] or the pistol was used inappropriately that it could be associated with him."

¶8 The State initially charged Bell with first degree assault. It later added a count of drive-by shooting. During jury selection, Bell requested that jurors not wear face masks that obstructed their noses and mouths, a request the trial court denied. After hearing testimony, the jury convicted Bell of first degree assault with a firearm enhancement and drive-by shooting. The court sentenced Bell to 171 months in prison, the low end of the standard range, using an offender score that included both crimes.

¶9 Bell appeals.³

ANALYSIS

Court's Ruling Concerning Face Masks

¶10 Bell first challenges the trial court's denial of his request that potential jurors wear face shields rather than face masks during jury selection, a request made so that potential jurors’ demeanor would be more apparent during questioning. He contends that the trial court's ruling violated his right to an impartial jury. We are not persuaded.

1. The Purposes and Manner of Jury Selection

¶11 The Washington and federal constitutions guarantee a criminal defendant's right to an impartial jury. WASH. CONST . art. 1, § 22 ;⁴ U.S. CONST . amend. VI.⁵ To enforce this right, potential jurors are removed "for cause" where the court or parties detect bias. RCW 4.44.190. Voir dire, the part of jury selection wherein the parties ask questions and engage in discussion with potential jurors to draw out potential bias, is central to securing the right to an impartial jury. State v. Momah, 167 Wash.2d 140, 152, 217 P.3d 321 (2009). But voir dire is more than just a question and answer session; and the interactions that inform whether the parties request a potential juror's disqualification for cause—and whether the court grants that request—are more than purely verbal. Instead, the parties and the court rely on all the modes by which one person may assess another's credibility, including their demeanor. Uttecht v. Brown, 551 U.S. 1, 2, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 (2007) ; see also Reynolds v. United States, 98 U.S. 145, 156-57, 25 L. Ed. 244 (1878) ("[T]he manner of a juror while testifying is oftentimes more indicative of the real character of [their] opinion than [their] words.").

¶12 Decisions by the trial court about whether to excuse a juror are therefore reviewed for an abuse of discretion by appellate courts, "in part because a transcript cannot fully reflect" all the information conveyed—intentionally or inadvertently—by jurors during voir dire. See Uttecht, 551 U.S. at 17-18, 127 S.Ct. 2218 (explaining appellate courts’ deference to trial courts concerning jury selection). A trial court abuses its discretion if its decision "adopts a view that no reasonable person would take." State v. Sisouvanh, 175 Wash.2d 607, 623, 290 P.3d 942 (2012).

¶13 Similarly, the trial courts are vested with "broad discretion" in deciding the manner of voir dire. State v. Brady, 116 Wash. App. 143, 146, 64 P.3d 1258 (2003) ; see also RCW 2.28.150 ("[I]f the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the laws."). The courts’ "discretion is limited only by the need to assure a fair trial by an impartial jury." Brady, 116 Wash. App. at 147, 64 P.3d 1258. The scope of voir dire should be "coextensive with its purpose, ... ‘to enable the parties to learn the state of mind of the prospective jurors.’ " State v. Frederiksen, 40 Wash. App. 749, 752, 700 P.2d 369 (1985) (quoting State v. Laureano, 101 Wash.2d 745, 758, 682 P.2d 889 (1984) ).

¶14 The trial courts’ discretion over the manner of jury selection exists in a number of forms. A trial court may, for instance, where a certain line of examination is not calculated to uncover bias, limit the parties’ questioning. State v. Bokien, 14 Wash. 403, 410, 44 P. 889 (1896). It may, where other constitutional rights are not at issue, conduct voir dire away from the public view to permit jurors the privacy to more easily express their opinions. See Momah, 167 Wash.2d at 152-53, 217 P.3d 321 (addressing conflicts between right to a public trial and right to an impartial jury and allowing that circumstances may require closure in the name of impartiality). It may also, as the case demands, allot more or less time for voir dire. See Brady, 116 Wash. App. at 147, 64 P.3d 1258 (court in certain circumstances may "reasonably reduc[e]" amount of time promised for questioning). But this discretion is not boundless. In Brady, to give one example, the trial court abused its discretion when it promised counsel a certain amount of time for voir dire, counsel prepared to ask certain sensitive questions later in that time, and the court shortened the available time without allowing the attorneys an opportunity to adjust to that change. 116 Wash. App. at 147-48, 64 P.3d 1258.

2. Jury Selection During the Pandemic

¶15 Starting at the beginning of the COVID-19⁶ pandemic, Washington courts adopted a variety of strategies to ensure that trial could continue safely. The Washington State Supreme Court, in an order issued June 18, 2020, required courts to "conduct all [jury trial] proceedings consistent with the most protective applicable public health guidance in their jurisdiction." Ord. re: Modification of Jury Trial Proc., In re Matter of Statewide Response by Washington State Courts to the COVID-19...