State v. Bell

1

STATE OF WASHINGTON, Respondent, v. RAYMOND LAPEER BELL, Appellant.

No. 38671-6-III

Court of Appeals of Washington, Division 3

August 24, 2023

UNPUBLISHED OPINION

Siddoway, J.P.T.^[*]

Raymond Bell appeals his conviction for first degree assault with a deadly weapon, challenging the sufficiency of the evidence and alleging a violation of his right to a fair and impartial jury, evidentiary error, and an abuse of discretion in denying his request for an exceptional mitigated sentence. The evidence was sufficient, his standard range sentence is not appealable, and he fails to identify any error or abuse of discretion. For those reasons, and because he raises no meritorious issues in a statement of additional grounds, we affirm his judgment and sentence other than to grant his request for relief from the victim penalty assessment based on a recently-effective change in the law.

FACTS AND PROCEDURAL BACKGROUND

On an evening in March 2019, a woman who identified herself as "Shanna" called 911 to report that she had just been assaulted. The call was transferred by the 911 operator to a Spokane police dispatcher. Shanna had just begun speaking to the dispatcher when she abruptly told the dispatcher that her attacker had come back into the apartment. She ceased responding to questions. All the dispatcher could hear were muffled voices. Spokane police responded to the address provided to the 911 operator and found Shanna Delcambre in an upstairs apartment with a deep head wound and her right hand almost completely severed. She told police that Raymond Bell had repeatedly attacked her with a machete.

Mr Bell was located in a first-floor hallway of the apartment building and was taken into custody. The State charged him with first degree assault with a deadly weapon, later amending the information to add a charge of attempted first degree murder.

The case proceeded to trial in October 2021. Among Mr. Bell's pretrial motions in limine were several related to the then-ongoing coronavirus disease 2019 (COVID-19) pandemic. He moved for two additional alternate jurors, the explanation being, "There should be additional alternates on the jury due to the risk of COVID-19 Delta infection." Clerk's Papers (CP) at 18. He requested "additional time to investigate juror biases and strike jurors for cause," including "for those who indicate they will be distracted by the surrounding issues with the COVID[-]19 pandemic." Id. at 19 (boldface omitted). He submitted that "[j]urors who concede that their ability to focus on the testimony is impaired by the pandemic must be stricken for cause." Id. at 22.

He objected to witnesses wearing masks while testifying as violating his right of confrontation. Finally, he objected to jurors wearing N95 or other face masks during voir dire asking that they wear face shields instead.

It was the practice of the superior court at the time for witnesses not to wear face masks when testifying. For jurors and prospective jurors, the practice was for them to wear face masks. When the parties' motions in limine were heard, Mr. Bell's request that the jurors not wear face masks was his only COVID-related request that was not accommodated or resolved with defense agreement. The court explained:

The record should reflect that-so sad I had to update this because it was the fourth wa[ve], now it's the fifth wa[ve], our community is currently in what's been characterized as the fifth [wave] of a global pandemic caused by the deadly Corona virus, which has killed-and back then it was over a half million, but I know that we are at 700-and-something-thousand U.S. citizens and infected millions more. Spokane County Health Department figures reflect, and this was yesterday's numbers, so I'm sure that, or I would not be surprised if it did clear 67,000 cases because as of yesterday evening, it was 66,988 cases with 4,219 overall hospitalizations. Less than half of Spokane County is vaccinated.

While the defendant has a right to a timely jury trial, I also have to weigh the safety of the citizens that the court is compelling to attend jury service. CDC^[1] face shield provided sufficient protection while advising N95 mask with social distancing provides the best protection against transmission, particularly important with the even more contagious Delta variant. And in addition to that, Governor Inslee has instituted an indoor mask mandate.

For those reasons, I am going to deny defense number 9. I can't tell you how much I wish we weren't in this position still, but, unfortunately, we are.

1 Rep. of Proc. (1 RP) at 26-27 (emphasis added).^[2]

In jury selection the next week, the court began by talking to prospective jurors about the pandemic-related safety protocols in place. Face masks were provided, and jurors were told by the court that "[f]ace coverings are required for protection in the courtroom." 1 RP at 59-60. The court added, "I will not have my face covering on while I'm talking during voir dire, and counsel will be allowed to remove their face covering while speaking." Id. at 60. When the time came for jurors to answer questions, the court said, "[W]e'll start with Juror No. 1. If you could lower your face covering while you're speaking. It will help with the court reporting." Id. at 67. During the questioning, prospective jurors were periodically reminded or requested to lower their face coverings when speaking. See, e.g., 1 RP at 78 81, 97, 109.

After the jury was selected, three days of testimony ensued. There had been three witnesses to the assault: the victim, Shanna Delcambre; the defendant, Mr. Bell; and Dorothea George, Mr. Bell's longtime girlfriend and his roommate at the time of the assault. Ms. George and Ms. Delcambre were called as witnesses in the State's case.

Dorothea George testimony

Of the witnesses to the assault, Ms. George testified first. She testified that on the day of the assault, Mr. Bell had been awake and upset for days, following a suspension from work. For four days, he had been drinking and smoking crack cocaine. She testified she had finally gotten Mr. Bell to sleep when, late in the afternoon, she heard an altercation in a parking area below their upstairs apartment. She looked out a window and saw Ms. Delcambre, who she recognized; she, Ms. Delcambre, and Mr. Bell had been friends, decades earlier, in high school. Ms. George shook Mr. Bell awake and together they went downstairs to calm down whatever was going on between Ms. Delcambre and a man with whom she was arguing. After things settled, Ms. George and Mr. Bell walked across the street to purchase beer and malt liquor and invited Ms. Delcambre to join them upstairs. The three began drinking and smoking weed in the apartment. Ms. George estimated that Ms. Delcambre was with them in the apartment for about three hours.

Ms. George testified that an argument started when Ms. Delcambre mentioned a girl they had gone to school with and Mr. Bell commented that the girl had been "pretty back in the day," which Ms. Delcambre felt disrespected Ms. George. 2 RP at 38. When Ms. Delcambre asked Mr. Bell how he would feel if Ms. George talked wistfully about her old boyfriend's "stuff," 2 RP at 38, Mr. Bell told her to be quiet, which made Ms. Delcambre angrier. According to Ms. George, the argument between Mr. Bell and Ms. Delcambre escalated and became a physical fight. Mr. Bell told Ms. Delcambre, "Get the 'F' out of my house," but Ms. Delcambre did not leave. 2 RP at 40. Ms. George then yelled for them both to leave, but only Mr. Bell walked out. Ms. Delcambre began to call the police, while Ms. George pleaded with her not to.

Ms. George assumed Mr. Bell heard Ms. Delcambre calling the police, because he came back into the apartment and followed Ms. Delcambre into the bedroom. Ms. George testified that she stayed in the living room until she heard Ms. Delcambre screaming her name. When she entered the bedroom, she thought the two were fighting like before, but she soon saw that Mr. Bell was "just chopping and chopping" at Ms. Delcambre with a machete. 2 RP at 43. Ms. George jumped in front of Mr. Bell, yelling at him to stop. She testified that his eyes were blank and he appeared not to hear her; according to Ms. George, "[H]e didn't know what the hell he was doing." 2 RP at 79. When she grabbed him and called him "Daddy," he "stop[ped], froze, and looked around, and he was like, What the . . . ." 2 RP at 80. Ms. George testified Mr. Bell then left the apartment and never returned. Ms. George saw Ms. Delcambre was holding her wrist so she wrapped her hand in a shirt while calling 911.^[3] According to Ms. George, Mr. Bell "wasn't even mentally there" during the assault, and did not know what was going on. 2 RP at 42. She believed Mr. Bell was "blacked out" that night. 2 RP at 55. She had seen Mr. Bell black out before and said he would go entirely blank and be nonresponsive until he was shaken.

Shanna Delcambre testimony

Ms. Delcambre testified that she had been at the apartment building on the afternoon and early evening of the assault with her cousin, who was helping to change tires on the car of one of Ms. Delcambre's friends. It took "at least a couple hours." 2 RP at 116. The altercation that caused Ms. George to look out the window happened when Ms. Delcambre's friend's boyfriend started flirting with Ms. Delcambre, and she "told him off." 2 RP at 113. According to Ms. Delcambre, Ms. George came to a window and yelled down, "Oh girl, I thought that was you; I heard your voice." 2 RP at 115. The two talked briefly from that distance and then Ms. George came down to the parking lot. They shared a beer and chatted. Shortly after, Mr. Bell also came down and briefly joined them before leaving to buy beer.

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