State v. Payne

THE STATE OF WASHINGTON, Respondent, v. JOEL EDWARD PAYNE, Appellant.

No. 75503-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

March 26, 2018

UNPUBLISHED OPINION

MANN, J. — Joel Payne was convicted of assault in the first degree while armed with a deadly weapon and malicious harassment for the stabbing of Randelle Atkins. Payne argues on appeal that (1) he was denied due process after the police returned Atkins's ring before it could be tested for DNA, (2) his right to a public trial was violated when the trial court held a brief sidebar that was not memorialized on the record, (3) his right to counsel was violated when the trial court allowed his court appointed attorney to withdraw before hearing Payne's motion for a new trial, and (4) the trial court erred in calculating his offender score when it considered his out-of-state convictions. We disagree that Payne was denied due process or the right to a public trial. However, because the trial court erred in allowing defense counsel to withdraw from representing Payne during posttrial proceedings, and because the trial court erred in calculating Payne's offender score, we reverse and remand for new posttrial proceedings.

FACTS

On October 10, 2014, Atkins went shopping at the Southcenter Mall in Tukwila. After Atkins left the mall, he walked toward a convenience store. As he approached the store he passed a man, later identified as Payne, wearing a white mask. After leaving the convenience store, Atkins was approached by Payne who was now wearing the mask on top of his head. Atkins testified that Payne had bruises on his face and "looked kind of messed up." Payne began yelling racial slurs at Atkins and accused Atkins of robbing him. Atkins told Payne that he did not know him and attempted to walk past.

Atkins testified that he felt somebody was close to him and was about to touch him. Atkins raised his hands to create space and Payne stabbed him in the chest. Payne then ran away. Atkins testified that he only felt Payne touch him once. Atkins testified that his hands were full with shopping bags and that he did not swing at Payne. Atkins then sat on a bench and people came to assist him. An ambulance arrived and Atkins was transported to Valley Medical Hospital where they inserted a tube into his lungs to flush blood. Atkins remained in the hospital for two weeks.

Payne testified at trial that Atkins instigated the fight. Payne testified that he was walking alone at Southcenter Mall when he saw a black man wearing dark glasses that he believed had recently robbed him and stolen his notebook computer. Payne testified that the man, Atkins, had followed him out of a store, and when Payne turned around to face him, Atkins struck him twice in the face. Payne testified that he thought Atkins wasgoing to shoot him and therefore pulled out his pocket knife. Payne testified that Atkins laughed and tried to punch Payne again, and so Payne stabbed him in the chest before running away.

Witnesses to the attack mostly corroborated Atkins's description of events. Melisa Tinsley testified that she saw the fight break out and believed Payne was the aggressor, with Atkins appearing shocked and trying to defend himself. She called 911 after she saw Payne stab Atkins. Another witness, Mandeep Chawla, testified he saw the fight break out, and believed both parties threw a couple of punches, although none to the face.

Peter Mithia, a backroom associate at Sears, found Payne squatting inside a storage bin. Mithia said that Payne had "bruises, a swollen eye, and was bleeding from the mouth." Mithia informed the store's loss prevention officer who called the police. When the police discovered Payne, one of the officers tasered him and he fell to the floor. Payne began reaching into his pants pockets and kicking the officers. One of the officers struck him in the face repeatedly, one kicked him in the arm that was reaching into his pockets, and one sprayed pepper spray in his face. The officers were eventually able to place Payne in handcuffs and remove him from the storeroom.

The officers arrested Payne and searched him, finding two knives in his pockets. One of the knives appeared to have blood on the tip of the blade. Detectives Reed Lancaster and Eric DeVries processed the crime scene. At the scene, the detectives found Atkins's glasses and a ring that Atkins had worn on his pinky finger under a nearby bench. The police photographed the items, packaged them, and placed them into evidence. The day after the assault, Detective Ron Corrigan met with Atkins at thehospital and took photographs of his hands, which did not reveal any injuries consistent with having punched Payne in the face.

Payne was charged by amended information with one count of assault in the first degree, with a sentencing enhancement alleging Payne was armed with a deadly weapon, and one count of malicious harassment for allegedly stabbing Atkins based on his perception of Atkins's race. At trial, the jury was instructed on self-defense. The jury convicted Payne as charged. Payne appeals.

ANALYSIS

Violation of Due Process

Payne argues first that the police violated his right to due process by returning Atkins's ring before it could be tested for DNA evidence. We disagree.

We review an alleged due process violation de novo. State v. Mullen, 171 Wn.2d 881, 893-94, 259 P.3d 158 (2011). Approximately one week after the assault took place, Atkins asked Detective DeVries, the lead detective on the case, if he could have his cellphone, eyeglasses, and ring returned to him. DeVries agreed to return the three items to Atkins because they had already been photographed and he determined that they did not appear to have any evidentiary value. Payne filed a pretrial motion to dismiss, alleging the State committed a due process violation by releasing the ring without Payne having the opportunity to have it tested for the presence of his DNA.¹ Payne argued that testing the ring may have shown Atkins did indeed strike Payne, thussupporting Payne's theory that he responded in self-defense. The trial court denied the motion.

"To comport with due process, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense." State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994). Due process does not, however, "impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988). "Whether destruction of evidence constitutes a due process violation depends on the nature of the evidence and the motivation of law enforcement." State v. Groth, 163 Wn. App. 548, 557, 261 P.3d 183(2011).

We look first to the nature of the evidence. If the State has failed to preserve "material exculpatory evidence," the criminal charges must be dismissed. Wittenbarger, 124 Wn.2d at 475. If the evidence is not "materially exculpatory," but is merely "potentially useful," failure to preserve the evidence only violates due process if the defendant can show the State acted in bad faith. State v. Burden, 104 Wn. App. 507, 512, 17 P.3d 1211 (2001). "Potentially useful" evidence is "'evidentiary material of which no more can be said then that it could have been subjected to tests, the results of which might have exonerated the defendant.'" Groth, 163 Wn. App. at 557 (quoting Youngblood, 488 U.S. at 57). The presence or absence of bad faith turns "'on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.'" Groth, 163 Wn. App. at 558 (quoting Youngblood, 488 U.S. at 56).

Payne only argues the ring was "potentially useful" evidence. Even if we assume the ring was potentially useful,² Payne's due process claim fails because there is no evidence to demonstrate bad faith.

Payne argues DeVries acted in bad faith because (1) he was not following any established procedure to dispose of evidence, (2) the detectives all knew the importance of preserving evidence, and (3) Devries decision to return the evidence was solely based on his own determination that Atkins's cellphone, glasses, and ring were not exculpatory. None of Payne's arguments rise to the level of bad faith.

This court addressed similar arguments in Groth. In Groth, after the murder investigation "went cold," a sergeant ordered destruction of the majority of the physical evidence. Groth, 163 Wn. App. at 554. At trial, someone testified that the evidence would usually have been preserved and that there was enough storage space for the evidence. Groth, 163 Wn. App. at 559. While this court acknowledged that it was "unclear why the evidence was destroyed," we still found there was "no indication that the sheriff's office knew of any exculpatory aspect of the evidence or that its destruction in 1987 was improperly motivated." Groth, 163 Wn. App. at 559. We specifically rejected the argument that "the destruction of evidence that is contrary to policy must demonstrate bad faith," acknowledging that Groth had not even demonstrated any explicit regulation or policy that had been violated. Groth, 163 Wn. App. at 559.

Here, as in Groth, Payne failed to present evidence that DeVries acted in bad faith in returning the ring. There is no evidence that DeVries knew the ring was exculpatory when he released it. Defense counsel had not requested the ring at the time, and DeVries testified that he believed the ring had no evidentiary value. Payne has not demonstrated that DeVries violated any explicit regulation or policy in choosing to return the ring, or actively misled the defense.³ Because there is no evidence that DeVries acted in bad faith, the return of Atkins's ring did not violate Payne's right to due process.

Public Trial Right

Payne argues next that his right to a...