State v. Danny Lamaar Wash.

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2024 S.D. 64

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. DANNY LAMAAR WASHINGTON, Defendant and Appellant.

No. 30237-a-PJD

Supreme Court of South Dakota

October 23, 2024

CONSIDERED ON BRIEFS FEBRUARY 13, 2024

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE PATRICIA C RIEPEL Retired Judge

LYNDSAY E. DEMATTEO Sioux Falls, South Dakota Attorney for defendant and appellant.

MARTY J. JACKLEY Attorney General JOHN M. STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

OPINION

DEVANEY, Justice

[¶1.] A jury found Danny Washington guilty on all counts alleged in an eight-count indictment, including first-degree kidnapping, injury to personal property, and multiple counts of aggravated and simple assault. He appeals, asserting his trial counsel was ineffective, there was insufficient evidence to support the kidnapping conviction, and he was improperly convicted on two counts of aggravated assault. He also argues that the circuit court's written sentence does not conform to its oral sentence. We affirm.

Factual and Procedural Background

[¶2.] J.B. and Washington were in a romantic relationship in October 2021. At the time, Washington was living in his father's home with his daughter, father, and stepmother. J.B. was living in a different home with her six children and their father, Bernard Vincent. Vincent and J.B. were no longer in a romantic relationship, but they continued to live together for the children. Much of the remaining evidence and testimony is disputed and is thus stated "in a light most favorable to the jury's verdict." State v Seidel, 2020 S.D. 73, ¶ 2, 953 N.W.2d 301, 305.

[¶3.] On October 25, 2021, J.B. drove to Washington's house after he sent her a text message asking to meet and talk. While parked in his driveway, they sat inside her vehicle and had a conversation. Washington was upset and started yelling at J.B., asking her why she does not "take him seriously" and if she thinks "everything is a game." He also accused her of cheating on him. J.B. testified that he then began choking her and slamming her head and face into the driver's side window.

[¶4.] At some point, Washington's father called him to come inside the house. According to J.B., Washington forced her to get out of the vehicle, and when she did, he "came around to [her] side and he grabbed a handful of [her] hair in the back of her head and forcibly took [her] up the driveway and up the stairs to the front door." Washington's stepmother opened the front door and told them to argue somewhere else. Washington told J.B. "to stay put," but after he went inside, J.B. ran back to her car and drove away.

[¶5.] J.B. testified that after she left, she did not call the police to report what had happened because she "was more scared than anything[.]" She drove directly to where she works as a caregiver at a residential facility for a company that provides daily care to residents. Her usual shift is from 9:00 p.m. to 7:00 a.m.

[¶6.] After finishing her shift on the morning of October 26, J.B. exchanged multiple text messages with Washington regarding Washington's desire to meet with her. These were admitted as evidence during the trial. In one message, J.B. told Washington that she did not want anything to do with him, and in a reply, he stated, "I am going to make you hate me." She asked why and then told him to "[j]ust peacefully move on." She testified that she sent this text to try to end her relationship with him. She later sent a text indicating she was going to work, and thereafter, Washington sent her multiple messages that made her "feel uncomfortable[,]" including: "I will make you lose your job tonight I swear to god"; "Answer"; "Okay here I come"; "Answer me"; "You think I'm fucking playing[.]" She testified that she did not reply to these messages.

[¶7.] Later that day, when J.B. was at work, she heard Washington's voice through a monitor the facility uses for the residents. She could see him in the hallway through a peephole in the door, and she heard him try to open the door to the room in which she was located. The door was locked, and Washington started knocking and asking J.B. to let him inside. She did not open the door and told him that she had already asked him to leave her alone. J.B. used her phone to record Washington's actions through the door's peephole, and the recording was entered into evidence at trial.

[¶8.] It is undisputed that Washington eventually left the building and walked into the parking lot. While there, he threw rocks at the back and driver's side windows of J.B.'s vehicle, shattering the windows. J.B. was unaware of the damage to her vehicle until around midnight when she entered the parking lot. She did not see Washington cause this damage, although she suspected he did. J.B. called law enforcement to report the vandalism, and at approximately 1:00 a.m. on October 27, 2021, an officer from the Sioux Falls Police Department responded. J.B. told the officer she did not know who damaged her vehicle, but while testifying at trial, she explained that she said this because she "was scared" and she did not "want to tell on him."

[¶9.] J.B. went back inside and resumed working. When she completed her shift at approximately 7:00 a.m., it was raining, so she began placing towels in her broken car windows. Because she could not drive her vehicle, she sent Vincent a text asking to borrow his vehicle. While she was waiting in the parking lot for Vincent, Washington appeared in front of her vehicle out of nowhere. He told her to get into his vehicle. She claimed that she tried to "talk him down, keep the conversation calm[,]" but "eventually, [she] agreed to get into his car." She then sent Vincent a text stating, "Send help to my job[.]" She also called her coworker to say she had keys the coworker would need for the shift and asked the coworker to meet her at her car. At trial, J.B. explained that she did not really have keys her coworker would need, but made the call thinking she could ask the coworker for help. However, when the coworker arrived, Washington was standing in the vicinity of J.B.'s vehicle and J.B. did not feel it was safe to ask for help, so she gave the coworker her bag and told her to take it to the office.

[¶10.] After the exchange with the coworker, J.B. followed Washington back to his vehicle and sat in his passenger seat because he told her to. As Washington drove out of the parking lot, J.B. noticed that he had a black gun on his lap. He began yelling at her about the same things he expressed during their argument on October 25. She testified that she was afraid.

[¶11.] Vincent testified that he sent J.B. repeated texts after her request for help, but she did not respond. He went to her place of work, and after seeing her broken vehicle windows, he called 911. Eventually, Vincent was able to make phone contact with J.B. He testified that he could hear "in her voice that she was in danger; meaning, she was weeping, like crying." Officer John McMahon was beside Vincent during the call and testified that "she sounded like she was scared" and "as though she was crying." Officer McMahon's body camera footage was played for the jury. It captured a female voice on the other end of Vincent's call crying and stating that she does not know where she is and that she could not talk.

[¶12.] Although J.B. testified that she did not recall speaking to Vincent on the phone, she recalled speaking to her mother briefly as she and Washington were leaving the parking lot. She claimed she told her mother about the broken windows and that she had reported it to law enforcement. She did not say anything more to her mother because Washington was rushing her to get off the phone. After she hung up, he told her to turn off her phone, which she did.

[¶13.] J.B. testified that at multiple points while Washington was driving, she considered jumping out of the vehicle but did not because she was worried no one would be able to help her or that Washington would shoot her. At one point, Washington stopped the vehicle on the side of the road in a residential area. He told her he was going to kill her and then himself and that she should call her children to tell them goodbye and that she loves them. She called her oldest son, but he did not answer. She called two of her younger children, and after they answered, she told them to have a good day at school and that she loved them.

[¶14.] After J.B. made these phone calls, Washington drove them to his home. J.B. testified that Washington took backroads to get there rather than the main streets. She also testified that while they were driving, he repeated that he was going to shoot her and then himself and explained that he planned to do so after he parked the vehicle in the garage. When they arrived at his home, Washington drove the vehicle into the garage and closed the garage door. J.B. testified that he then "clicked the gun," and "at that point, [she was] just crying, begging him" to let her call her son. In response to her plea, he told her that she now knows "what it feels like to beg because he had to beg for [her] to open the door" at her work the night before.

[¶15.] Washington did not let J.B. call her son. Instead, he pointed the gun to her head. She testified that she was crying and covering her face and that he told her to "put [her] hands down because he wanted to see [her] when he shoots [her]." She also testified that he was yelling at her because she was crying. She eventually looked at him and saw that he was getting out of the car. She saw him go to the front of the car and then reenter the vehicle without the gun. After this, he...