State v. Donnette-Sherman

STATE OF WASHINGTON, Respondent, v. JOSEPH MICHAEL DONNETTE-SHERMAN, Appellant.

No. 47602-9-II

Court of Appeals of Washington, Division 2

October 25, 2016

UNPUBLISHED OPINION

JOHANSON, J.

Joseph Michael Donnette-Sherman appeals his jury trial conviction for second degree assault and his deadly weapon sentencing enhancement. He argues that (1) he received ineffective assistance of counsel when his trial counsel failed to object to the prosecutor's improper closing argument and (2) the trial court violated his right to a public trial when it considered for-cause challenges in a sidebar during jury selection. He also raises several additional claims in a pro se statement of additional grounds for review^[1] (SAG). Because Donnette-Sherman does not establish ineffective assistance of counsel based on defense counsel's failure to object to the State's closing argument and does not show that the courtroom was closed, and because his SAG claims either fail or cannot be addressed, we affirm.

FACTS

I. Background

On the evening of August 4, 2013, Bruce Boyles went outside to check on his barking dog. The dog was leashed to a 20-foot steel cable in Boyles's front yard.

As he approached the dog, Boyles saw his neighbor Donnette-Sherman, approaching the dog with a machete in his hand. According to Boyles, Donnette-Sherman grabbed the dog's cable and "was reeling back with the machete." 1 Report of Proceedings (RP) at 82.

Boyles told Donnette-Sherman to get away from the dog and said he (Boyles) was calling the police and taking pictures. Donnette-Sherman stopped, looked up at Boyles, let go of the cable, approached Boyles, and swung the machete at him. Boyles moved his hand to block the machete, and the machete hit the phone and Boyles's thumb. The machete made a "deep cut in the phone" and made a small cut to Boyles's thumb. 1 RP at 92. Before dropping the phone Boyles was able to take photographs of Donnette-Sherman with the machete.

According to Boyles, after the first strike, Donnette-Sherman "reeled back with the machete again like he was going to swing it at [Boyles's] throat." 1 RP at 85. Donnette-Sherman did not, however, strike again. Instead, he turned around and went home. Both Donnette-Sherman and Boyles called 911.

When a deputy questioned Donnette-Sherman at home, he told the deputy that he had gone over to Boyles's house to free the dog, who was chained and constantly barking. Donnette-Sherman stated that he was tired of the dog's barking, thought the dog was being abused, and was attempting to cut the dog's tether. He further stated that he thought Boyles had a weapon in his hand and that he (Donnette-Sherman) had approached and swung the machete at Boyles to disarm him. When describing what Boyles had done, Donnette-Sherman gestured with his hands in a manner the deputy later described as being similar to someone "holding a camera, taking pictures." 1 RP at 57. Donnette-Sherman gave the machete to the deputy, and the deputy photographed it and took it into evidence.

II. Procedure

The State charged Donnette-Sherman with second degree assault with a deadly weapon^[2]with a deadly weapon sentencing enhancement. The case was tried by a jury.

A. Jury Selection

During voir dire, after counsel finished questioning the venire, the trial court considered the parties' motions to exclude jurors for cause in a sidebar. The venire remained in the courtroom, and there is nothing in the record suggesting that the courtroom was closed to the public at this time.

Following the sidebar, the trial court selected the jurors. The trial court and counsel then described the sidebar in detail for the record, noting which jurors had been challenged for cause, which had been excused for cause, which party had moved to excuse the juror for cause, the other party's response, and the reason each juror was excused.

B. Evidence

Boyles and a deputy who responded to the 911 calls testified for the State. Their testimony was consistent with the facts set out above. Donnette-Sherman did not present any evidence.

During the trial, the trial court admitted several photographs of the machete taken by the deputy, the photographs of Donnette-Sherman with the machete that Boyles took with his cell phone, and the machete that Donnette-Sherman gave the deputy. Defense counsel did not object to any of these exhibits. The machete's blade was 22 inches long; the entire machete was 27 inches long.

C. Closing Argument

During closing argument, the prosecutor argued,

Now I want to talk a little bit about self-defense, because that's what I believe the defense will be in this case, and you have been instructed on self-defense, and / submit to you that there is no, none whatsoever, evidence that the force that [Donnette-Sherman] used on this date was justified or lawful.

Instruction No. 13, 1 have only got part of it up here. I will go through some parts of it. These are excerpts from Instruction No. 13, "The use of the force upon or towards a person is lawful when used by a person that reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against a person and when the force is no more than necessary."

So in this case, you might want to ask yourself in deliberation, what evidence is there that would create in [Donnette-Sherman] the idea that he was about to be injured, that his injury was imminent?

The only evidence you have is what [Donnette-Sherman] told the officer when the officer went to talk to him about this incident, and he said he thought Mr. Boyles was holding a weapon, and he demonstrated how Mr. Boyles was holding the weapon, and he held his hands out like this, like somebody holding a camera, not like somebody holding a weapon.

And Dep. Brooks didn't know any kind of weapon that would be held in the way a camera was held, and this is accurate as far as how Mr. Boyles testified he was holding the camera. He held out the camera or the phone, which was taking pictures, and that can in no way be construed as threatening or in no way can that be construed as justifying the force that [Donnette-Sherman] then used. That force can be no more than is necessarily [sic].

If you are going to go down that road to explore self-defense, ask yourselves, what would be necessary in those circumstances to [Donnette-Sherman], in the circumstances known to him at that time, what force was necessary?

And I submit to you that absolutely no force was necessary or justified. He didn't have to continue towards Mr. Boyles. He was on Mr. Boyles' property. He had no legitimate business being there. He was told, I am recording this, I'm getting all of this. He wasn't threatened. He was told - unless he is being threatened with accountability by being photographed - but he is told, I'm getting all of this. To construe that as some sort of a threat where force was necessary to defend himself, there just isn't any - there just isn't any evidence of that.

What avenues did he have? Even if you do go down that road and think, well, maybe he did think - maybe he thought this phone was some sort of a weapon, what were his options at that point?

He could have gone - according to the testimony of both the officer and Mr. Boyles, there was nothing to prevent him from turning and walking away, turning and running away, from going in any other direction. But he chose to go straight in the direction of Mr. Boyles with the machete and struck towards Mr. Boyles.

So I would ask you to find that the defense was there was no situation where [Donnette-Sherman] would be prudent or reasonable in using that force. Again, Mr. Boyles was on his own property. He was holding an object as if someone would be holding a phone, not a weapon, not a knife, nothing like that.

He was stating - and he didn't yell - he stated he was taking pictures, and [Donnette-Sherman] responded when he said that. It was clear to Mr. Boyles that [Donnette-Sherman] heard him. He had many other avenues. He could leave the scene. He did not have to go towards Mr. Boyles with that machete.

Given that evidence, there was no reasonable belief, no reasonable person would have the belief that they were about to be injured, and the force was much more than necessary to attack him with a machete when he had other options.

1 RP at 167-70.

The jury found Donnette-Sherman guilty of second degree assault with a deadly weapon and found by special verdict that he had been armed with a deadly weapon at the time of the crime. Donnette-Sherman appeals.

ANALYSIS

I. Ineffective Assistance of Counsel Claim

Donnette-Sherman first argues that defense counsel provided ineffective assistance of counsel when he failed to object to alleged prosecutorial misconduct in closing argument. Specifically, Donnette-Sherman asserts that defense counsel should have objected when the prosecutor "impl[ied] during argument that the jury need not consider the issue of self-defense if it excludes Donnette-Sherman's statements to Deputy Brooks." Br. of Appellant at 7. We disagree with Donnette-Sherman's characterization of the prosecutor's argument, and we conclude that his counsel was not ineffective when he failed to object to the prosecutor's closing argument.

A. Legal Principles

To prevail on his ineffective assistance of counsel claim Donnette-Sherman must show both deficient performance and resulting prejudice; failure to show either prong defeats this claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). To establish deficient performance, Donnette-Sherman must show that defense counsel's performance fell below an objective standard of reasonableness. McNeal, 145 Wn.2d at 362 (citing Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We review...