State v. Orn

THE STATE OF WASHINGTON, Respondent, v. NICHOLAS CONAN ORN, Appellant.

No. 78089-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

November 18, 2019

UNPUBLISHED OPINION

SMITH, J. — Nicholas C. Orn appeals his conviction for attempted first degree murder. He argues that the jury was improperly instructed and that the trial court erred by excluding evidence that the victim was involved in a later incident that led to his becoming a confidential informant. In a statement of additional grounds for review, Orn also argues that he was deprived of his right to confront witnesses because the State decided not to call Ian Warmington, one of the detectives who processed the crime scene.

We hold that the jury was properly instructed because the jury instructions, taken as a whole, properly informed the jury of the applicable law, were not misleading, and allowed Orn to argue his theory of the case. We also hold that because the evidence regarding the victim's criminal activities was properly excluded under established evidence rules, its exclusion did not deprive Orn of his right to present a defense or his right to confront witnesses. Finally, we conclude that the State's decision not to call Detective Warmington did not

FACTS

This case arises from a shooting that occurred at the Rock Creek Landing apartment complex in Kent. In May or June of 2016, the victim, Thomas Darling-Seamans, moved in with his mother, Debra Darling, in her apartment unit at the complex. When things became too crowded after a friend of Darling-Seamans' also began staying at Darling's apartment, Darling rented a garage unit at the complex so that "the kids could put their things in the unit." Ultimately, Darling-Seamans and his friend began living in the garage unit. Darling-Seamans converted it into a living space, with sheets dividing the "living room" area at the front of the garage from the beds in the back.

Darling-Seamans, a self-described "proactive pothead[,]"was smoking marijuana in the garage one day with the door open when Kimberly Boals, who lived in the complex with Orn, her boyfriend, walked by and offered to pay Darling-Seamans "a couple dollars for a hit." Darling-Seamans "was like don't even worry about it, come on in, join." After that, Boals visited Darling-Seamans often and "would just cry about her problems and . . . her relationship" with Orn. Although Darling-Seamans and Orn had smoked together "[l]ike once[,]" Darling-Seamans did not know Orn very well: "[W]e were cordial but not friends."

On July 17, 2016, Boals and Orn broke up. Boals later testified that Orn moved out the next day, July 18, 2016. Orn took some of his belongings, left behind other items that were either his or that he and Boals shared, and moved in with his father.

Boals, who was not working at the time, became worried about havingenough money to pay rent. According to her later testimony, Boals, assisted by Darling-Seamans, identified some items in Boals's apartment that she could sell for rent money, and placed them in a blue tote. Boals testified that this happened on July 18, 2016, i.e., the same day that Orn moved out. According to Darling-Seamans, he purchased the items in the tote from Boals for 60 or 70 dollars. Additionally, Boals agreed to give a portable air conditioning (AC) unit to Darling-Seamans in exchange for 40 dollars' worth of marijuana.

Boals and Darling-Seamans went back to Darling-Seamans' garage with the blue tote and the AC unit and "were just chilling" when, a short time later, Orn and his father came to the complex to pick up the rest of Orn's belongings. They discovered Boals and Darling-Seamans in the garage unit, "a bunch of us smoking weed and, you know, the AC unit was there and then the tote." Boals later testified that Orn "was upset because it was obviously without his permission." Darling-Seamans later described Orn as "[p]issed as fuck" and "[s]haking, yelling he wanted his stuff back." Darling-Seamans gave the blue tote to Orn. He also worked out an agreement to keep the AC unit in exchange for paying Orn additional money for it in the future.

About two weeks later, the morning of August 2, 2016, Orn went to Boals's apartment. According to Boals's later testimony, the two went to the bank, had a meal, and "kind of just had said our good-byes, kind of more mutual, . . . you know, maybe we can be friends." Boals recalled that when the two parted ways that early afternoon, "we were pretty calm. It was kind of like the good-bye, you know, you kind of would want in a relationship, kind of see you around and stayin contact kind of thing."

Later that evening, around 8:30 or 9:00 p.m., Boals was walking back from the garbage dumpster after throwing some things away when she saw Orn pull up and get out of his car with a rifle. Boals later testified that Orn was "angry, irrational, not in a good state of mind" and that he was acting "totally . . . opposite, like a flip" from the way he had been acting when she saw him earlier that day. Boals testified that Orn was upset and that "he was going to go confront [Darling-Seamans]." Although she could not recall exactly what Orn said, she testified that Orn "had the gun and he was going to at least threaten and/or shoot [Darling-Seamans]." The two ultimately made their way to Boals's apartment. Boals later testified that while they were standing in the kitchen, Orn, who had brought his rifle with him, "put the clip on the gun." Boals testified that she was frightened and threatened to get law enforcement involved. Boals recalled that Orn "didn't seem concerned" or said something to the effect of, "I don't want to hurt you as well, . . . don't do that." Boals recalled threatening again to "call the cops or get help of some kind . . . to stop this from happening[,]" and then Orn walked out the door with his gun. Boals went to the bathroom "because at that point, I mean, I had—there was nothing I could do."

As Boals was finishing up in the bathroom, Orn walked into the doorway and, according to Boals, "had the rifle under his chin and was threatening himself." Boals later testified that she said "don't do that," but that Orn said, "I'm going to do it because I just shot [Darling-Seamans] like 20 times." Boals recalled that she was shocked, ran past Orn out of the apartment, discoveredDarling-Seamans shot and bleeding, and ran to try to get help.

Darling-Seamans, who at the time was working a night shift, later testified that he had been lying the couch in his garage before going to work when, all of a sudden, the door "just kind of yanked open, and . . . I jerked up and saw [Orn] standing there pointing a gun at me as he asked real quick where's my stuff at." Darling-Seamans testified that he stood up, said "dude," and "that was pretty much it." "It was like right when I stood up, it was over. I got hit right here first time, shot me to the side and just littered my whole left side with bullets." Darling-Seamans testified that when the shooting began, he went into "flight" mode and turned around and ran toward the back of his garage while Orn was "still standing there just ping, ping, ping like I'm a little duck, and he was just like on me, on me, on me, on me." Darling-Seamans testified that he tried to take cover underneath a dirt bike in the back of his garage. "I just kind of tucked underneath and I was right by my bed, and I couldn't tell if he came in or not. I was still getting layered with bullets." When the shooting stopped, Darling-Seamans got to his feet, stumbled toward the apartment complex, and banged on a door for help. At least two neighbors called 911, Kent police responded to the scene, and Darling-Seamans was taken to Harborview. Although Darling-Seamans suffered numerous bullet wounds, he survived.

The State charged Orn with one count of assault in the first degree and one count of attempted murder in the first degree. Before trial, the State moved in limine to exclude evidence that Darling-Seamans "was being employed by the Kent Police Department as a confidential informant based upon a completelyunrelated situation." Specifically, the State moved "to exclude defense from introducing any evidence of this arrangement, as well as the underlying alleged criminal activity the victim may be involved in, which led to his agreement with Kent Police." Meanwhile, Orn moved in limine to admit that evidence, arguing that "[s]uch instances of potentially avoidable prosecution by the same police department at issue herein, reflect bias, lack of truthfulness, and bad acts-motive, intent, absence of mistake, and concerns the same subject matter at issue herein, to wit., stolen property, firearms." The trial court ruled that it would allow only "very limited inquiry on this." It explained that although it would not allow any questioning "regarding the agreement itself or the nature of the agreement or the case[,]" it would allow defense counsel to ask Darling-Seamans something to the effect of, "'and isn't it true that since the incident you've . . . done some work with the Kent Police Department?'" It reasoned that this limited inquiry was relevant to Darling-Seamans' potential bias.

Later, after Darling-Seamans testified that he "just stay[s] proactive in not doing anything out of the question really[,]"Orn asked the trial court to reconsider its ruling. Specifically, Orn's counsel requested the court's permission to ask Darling-Seamans, "Is it true you've been arrested by the police and you have a deal, agreement with the police to help them on narcotics, stolen property, firearms in return for nonforwarding of the allegation to the prosecutor, correct?" Orn argued that Darling-Seamans had "open[ed] the door" to this line of questioning when he testified to the effect that he was not doing anything "out of the question." The trial court disagreed and stood by its earlier ruling, explainingthat "I don't think that that opens the door to impeach him on every wrong...