State v. Smith

1

STATE OF WASHINGTON, Respondent, v. ROBERT JEROME SMITH, Appellant.

No. 55665-1-II

Court of Appeals of Washington, Division 2

June 14, 2022

UNPUBLISHED OPINION

Worswick, J.

Robert Smith appeals his judgment and sentence. Smith was convicted of three counts of child rape following a jury trial. On appeal, he argues that (1) the trial court violated Smith's right to counsel when it refused to reveal the entirety of the jury's note to the parties, (2) his sentencing counsel had a conflict of interest, and (3) the trial court erred when it failed to inquire about the conflict of interest.

Smith further argues, and the State concedes, that (4) the trial court erred by imposing improper and unconstitutional community custody conditions. Regarding legal financial obligations (LFOs), Smith argues that (5) the judgment and sentence includes discretionary fees despite the trial court's intention to waive all discretionary fees. Smith also makes several arguments alleging his counsel was ineffective.

Lastly in his statement of additional grounds (SAG), Smith argues that trial counsel denied him the opportunity to testify, and the professionals who testified on behalf of VR were coercive.

We hold that (1) Smith cannot raise for the first time on appeal the argument that the trial court erred when it failed to share the entirety of the jury's note because the error is not manifest. We also hold that (2) sentencing counsel had a conflict of interest, and (3) the trial court erred when it failed to inquire into the conflict, requiring us to remand this case for a mistrial motion with conflict-free counsel. We further hold that (4) the trial court erred by imposing improper and unconstitutional community custody conditions and the conditions must be modified in accordance with the law, and (5) the trial court intended to waive all discretionary fees. Because ineffective assistance of counsel is the subject of the motion for new trial, we do not address Smith's ineffective assistance of counsel arguments on appeal. We also do not address the arguments in Smith's SAG.

Therefore we reverse in part and remand with instructions for the trial court to appoint conflict free counsel to prepare and argue a motion for new trial and, if the motion for new trial is denied, the trial court shall modify community custody conditions in accordance with Smith's constitutional rights.

FACTS

I. Background

VR was six years old when she started living with her mother who was in a relationship with Smith. Smith was the father of VR's younger half-brother. VR and her mother lived in different places over several years, including an apartment they shared with Smith. After VR and her mother moved out of the apartment they shared with Smith, he would regularly visit VR. In 2019, when VR was 11 years old, she alleged that Smith touched and penetrated her private parts with his fingers at three different residences when she was between six and eight years old.

After VR brought these allegations, the State charged Smith with three counts of child rape in the first degree, and the matter proceeded to a jury trial.

II. Smith's Absence and Trial Evidence

Smith was present for jury selection but did not appear at trial. After the jury was selected, Smith sent a text message to his attorney informing him that he would not be present. The trial court determined that Smith's absence was voluntary and proceeded with the trial in his absence.

VR testified about three separate incidents where Smith sexually assaulted her. VR also testified that she did not disclose the incidents sooner because she was scared Smith would hurt her if she did. She said she had seen Smith hit her mother before.

III. Jury Note and Verdict

A few hours after the jury began deliberating, it submitted a written inquiry to the trial court, stating

We have a (1) juror who is not following the juror instructions by bringing in their opinions of how the process should be handled. The other 11 jurors have tried to explain and show the instructions clearly, but they have refused to listen and have started making personal attacks. The other 11 jurors have found the defendant guilty on all counts.

Clerk's Papers (CP) at 27. When informing the parties of the inquiry, the court explained:

I have a document here, an inquiry from the jury, that has an inappropriate statement on it that I'm not intending to share with either side, and I do think it's appropriate that I redact a portion of this. However, by doing that, the other issue is not documented.

So, one of the requirements of the jury instructions is that if there is an inquiry the inquiry should not include how the jury is currently voting towards any particular issue, and they have put that into the inquiry. But I think if we deal with the first issue we can deal with the other issue subsequently. So, is there any objection from either the State or the defense for the Court to redact that portion of the inquiry that indicates how the jurors are currently thinking?

2 Report of Proceedings (RP) at 666. The State asked: "Is that what the Court considers inappropriate is the vote that was included or are we talking about something else?" 2 RP at 667. The trial court confirmed and clarified that "[t]he vote is included in the inquiry here." 2 RP at 667. Smith's trial counsel told the trial court that redacting the question was "fine," and did not ask any follow up questions. 2 RP at 668. The trial court read the inquiry to the parties but omitted the last sentence stating that "[t]he other 11 jurors have found the defendant guilty on all counts." CP at 27.

The trial court determined that the note raised an issue of potential juror misconduct, and the State urged the trial court to dismiss the juror, call an alternate juror, and restart deliberations. Smith's trial counsel agreed, commenting that "[i]t would be a waste of the past week if we just declared a hung jury or a mistrial and reset this. So, I think that if the Court finds that there's enough to dismiss that juror then the alternate should call - be called in." 2 RP at 669.

To determine whether dismissal was appropriate, the trial court questioned the presiding juror. The presiding juror explained that the recalcitrant juror was "unwilling to follow the juror instructions." 2 RP at 675. The presiding juror explained:

He wants additional evidence. He made some statements about the State not producing evidence that he would like to see in the trial. And because of that he didn't want to take the evidence of the victim at face value; he wanted evidence to corroborate her statement as opposed to receiving that as true evidence, on No. 6, direct evidence, was not interested in having that be direct evidence.

He also was against Instruction No. 7. We did a lot of referencing back to your instructions here, and Instruction No. 7 about the defendant not being required to testify, you may not use the fact that the defendant has not testified to infer guilt or prejudice him in any way. He felt that the defendant should have testified and did not want to let that go.

And at the end of Instruction No. 1 he felt that because of past experience that he had with an employee, who he felt was wrongly accused of another crime, he felt like he didn't want to provide a decision because he was worried about what the punishment for the crime was going to be. We tried to help him understand that on Instruction No. 1, you may not consider the fact that punishment may follow conviction, except insofar as it may tend to make you careful.

2 RP at 675-76. The presiding juror stated that the recalcitrant juror was not treating VR's testimony as direct evidence because VR was "a little girl" who "could have said anything . . . for attention." 2 RP at 677. And, that the recalcitrant juror began to make "personal attacks" that included "swearing." 2 RP at 676-77.

The trial court concluded that the recalcitrant juror had not committed misconduct. The State and Smith's trial counsel ultimately agreed that the recalcitrant juror's comments reflected the juror's view of the weight of the evidence. The trial court provided a written response to the jury's inquiry, which stated the following:

The jurors are reminded that they are directed to follow the instructions of the court as set forth in all of the jury instructions. This includes instructions #1, 6 and 7.^[1]By saying this, the court is not indicating that these instructions are any more important than the other instructions.

CP at 27. The trial court did not reference instruction number 2.^[2] Neither party objected to the written response. Less than an hour after being instructed, the jury returned a guilty verdict on all three counts.

IV. New Counsel and Motion For A New Trial

After the trial, trial counsel filed a motion to appoint Smith a different attorney for sentencing. Counsel explained that Smith refused to communicate with him but did not disclose why. The trial court granted the request.

The trial court appointed Peter Jones as counsel to represent Smith at sentencing. Jones was the director of the Mason County Public Defender's Officer, making him trial counsel, Ronald Sergi's, "boss." 2 RP at 721 698. In addressing the possibility of a conflict of interest, Jones explained that he "essentially instructed [sic] a wall"^[3] between himself and Sergi. 2 RP at 720. Jones stated:

I don't talk to him about the case. I haven't-other than to say, I'm not going to talk to you about the case . . . I'm not going to be instructing him one way [or] the other, because I think that's the best way we can avoid a conflict of interest is to simply erect that barrier between Mr. Sergi and myself for purposes of this case.

2 RP at 720-21.

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