State v. Maykis

STATE OF WASHINGTON, Respondent, v. ROBERT PATRICK MAYKIS, Appellant.

No. 37981-7-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

July 8, 2021

UNPUBLISHED OPINION

STAAB, J. — A jury found Robert Maykis guilty of malicious harassment and second degree assault, with special verdicts finding that he was armed with a deadly weapon for each count. Mr. Maykis appeals, claiming the trial court erred by: (1) prohibiting counsel from using the N-word during voir dire, (2) admitting evidence of the victim's brain injury, (3) excluding evidence of post-incident "run-ins" between the victim and defendant, including a subsequent apology, and (4) finding that a rock could constitute a deadly weapon for purposes of the sentencing enhancement. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. ALLEGATIONS

After a longer than normal bus ride home, Earl Brewster, a 65-year-old black man, needed to relieve himself. Believing that he would not make it to his bathroom, he walked between a couple of trucks parked on a lot near the bus stop and began to urinate on a fence. As he unbuckled his pants, Robert Maykis, a white male, approached him from uphill on the opposite side of the fence. Mr. Maykis yelled racial slurs at Mr. Brewster to include "porch monkey," "black Obama motherfucker," "fucking n----r," and told Mr. Brewster to "go back to where he came from" and threatened to "kick his ass."

Mr. Maykis leaned over the fence, trying to punch Mr. Brewster. When his efforts failed, Mr. Maykis picked up a rock and threw it over the fence at Mr. Brewster with great force. The rock was the "size of [the officer's] two fists," approximately 9 inches. Report of Proceedings (RP) at 415, 418. Mr. Brewster's head was within range of being struck by the rock since it fell from above him, but as he moved back, the rock struck his knee. Mr. Brewster cried out from the injury and fell over. Mr. Brewster yelled that he was calling the police, and Mr. Maykis told him to "go ahead" because he had witnesses. RP at 421. Mr. Maykis then entered his apartment, changed clothes, and left the scene in his vehicle. Mr. Maykis's girlfriend partially witnessed the incident from inside their second-story apartment through a fence and bushes. A female independent bystander fully witnessed the incident and took photos of Mr. Maykis's vehicle. Mr. Brewstersustained a small permanent mark where the rock hit his knee, which caused lasting pain that is "bothersome." RP at 509.

Mr. Maykis was charged with malicious harassment and second degree assault with special allegations that both were committed with a "deadly weapon." Clerk's Papers (CP) at 13-14. The case went to trial.

B. VOIR DIRE

During jury selection, the parties asked the jurors about discomfort with racial tension in America, racial stereotypes, "hate crimes" and touched on whether jurors held personal racial or ethnic bias. The defense then stated, "In this case, you might hear much more offensive language." RP at 294. The State objected to this line of questioning on the basis that it addressed evidence they might hear. Outside the presence of the jury, defense counsel clarified that he was going to talk about the specific language of the case to determine if jurors had a visceral response to the "N-word" that would interfere with the jury's ability to be "fair and impartial." RP at 321, 322. The trial court sustained the State's objection and reasoned that "we ask jurors about whether or not they can handle photographic photos. But we don't show them the photos and say, are you going to be okay?" RP at 297. The court proceeded to give a curative instruction that defense counsel could ask about "all the worst words that they can think of without talking about them specifically." RP at 298.

Defense counsel continued voir dire by asking whether calling somebody names is enough to be a hate crime. Juror No. 30 responded that if the case were to include cruel language showing racism towards somebody, "it would be hard for me . . . . But I would follow the evidence and the law." RP at 311-12. Juror 30 was excused by peremptory. Juror 5 was excused due to discomfort with provocative language associated with hate crimes. Juror 53 (not seated) indicated, "I have a real hard time when I hear people using certain words . . . . Racial stuff." RP at 313-14. Juror 46 (not seated) also expressed similar concerns. After trial began, and a witness testified about Mr. Maykis calling the victim the N-word, defense counsel moved for a mistrial because he was not allowed to explore the jury venire's reaction to that specific slur during voir dire. The trial court noted that the jurors did not visibly react when the witness was testifying and denied the motion for mistrial.

C. EVIDENCE OF BRAIN INJURY, RUN-INS, AND APOLOGY

On direct examination, Mr. Brewster testified that he had a brain injury that affected his memory. The State later asked how a rock strike would affect him, to which a defense objection was sustained. The State then asked whether his skull was "fine." RP at 475. Defense counsel objected to relevance without elaboration, and the court overruled. Mr. Brewster explained:

A few months before—well, several months before the incident, I just had a reconstructive surgery. It's just mainly plastic and things up there. Because I had a massive seizure some years back and I just got around toreconstructing it. And the surgeon said don't fall again or don't let anything hit it. This thing is not settled. Avoid at all costs getting hurt on your head. And then this guy launches a rock. So my instinct was to just move back. I would have took it to the chest and face before I let something hit me square in the head because that's where the projectile was going, man. I got my eye on it. I moved back.

RP at 475.

The State then asked Mr. Brewster, "How sure are you it's the defendant that assaulted you sitting here today?" RP at 480. Mr. Brewster responded, "Oh, we've had a run-in or two since. Not violent or anything. Pleasant at the time." Id. Defense counsel did not object, and the State moved on to a different topic.

During cross-examination, defense counsel asked about the "run-ins," and the State objected based on relevancy. RP at 492. Defense counsel asserted that the question generally addressed Mr. Brewster's credibility and bias but could not provide specific examples. The State proffered that defense counsel was really trying to elicit a subsequent apology made by Mr. Maykis during one of these run-ins.

The trial court allowed defense counsel to voir dire Mr. Brewster outside the presence of the jury. Defense counsel asked about the nature of the "run-ins" and if Mr. Maykis called him names or behaved menacingly in later interactions with Mr. Brewster. Mr. Brewster testified that Mr. Maykis had apologized during one of the "run-ins" and Mr. Brewster felt this was because "he feels he is ashamed of himself . . . he says he's sorry, those kind of things." RP at 500. Mr. Brewster clarified that after the incident Mr.Maykis would "wave at me every day and act like we're buds because we're not. You hurt me, man." RP at 501. These contacts made Mr. Brewster uncomfortable.

Defense counsel asserted that the information was relevant because it supported the State's case by showing consciousness of guilt. The State responded that it did not elicit that evidence, and defense counsel was merely trying to prove after the fact that his client was not a racist. The court sustained the State's objection on several bases: irrelevancy, hearsay, collateral subject matter, and that the evidence "doesn't go to a state of mind at the time [of the charged incident]." RP at 504.

D. ROCK AS A DEADLY WEAPON

At the close of the State's evidence, defense counsel moved to strike the deadly weapon enhancement, arguing that a rock does not qualify as a "deadly weapon" as that term is defined in the statute. The court denied this motion.

The trial court provided jury instructions directing the jury as to the charge elements, special verdict, and asking them to set aside emotional bias and decide the case on the evidence. The jury found Mr. Maykis guilty on both counts and returned special verdicts on each count, finding that Mr. Maykis was armed with a deadly weapon, the rock.

Mr. Maykis appeals.

ANALYSIS

A. DID THE TRIAL COURT ERR BY PROHIBITING MR. MAYKIS FROM ELICITING REACTIONS TO THE "N-WORD" DURING VOIR DIRE?

Mr. Maykis argues that the trial court's decision, prohibiting defense counsel from exploring the jury venire's reaction to the N-word, violated his constitutional right to a fair trial. Criminal defendants have a constitutional right to a fair and impartial jury. U.S. Const. amends. VI, XIV; WA Const art.1, §§ 3, 22; State v. Davis, 141 Wn.2d 798, 824, 10 P.3d 977 (2000). The process of voir dire is intended to protect these rights by allowing parties to "'ask the prospective jurors questions touching their qualifications to serve as jurors in the case, subject to the supervision of the court as appropriate to the facts of the case.'" Id. at 825 (quoting CrR 6.4(b)).

While the process implicates constitutional rights, the trial court maintains significant discretion in determining how to conduct voir dire. Id. "[A]bsent an abuse of discretion and a showing that the rights of an accused have been substantially prejudiced, a trial court's ruling on the scope and content of voir dire will not be disturbed on appeal." Id. at 826.

As noted above, the process of voir dire is intended to flush out potential bias and determine qualifications to sit as a juror on a particular case. Voir dire is not an opening statement. Nor is it an opportunity to educate the venire on particular facts of the case, compel them to commit to a theory, argue the case, instruct on the law, or plant the seedsof prejudice against an opponent. See State v. Frederiksen, 40 Wn. App. 749, 752, 700 P.2d 369 (1985). Instead, its...