State v. Vodder

STATE OF WASHINGTON, Respondent, v. COLBY D. VODDER, Appellant.

No. 37008-9-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

June 17, 2021

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Colby Vodder appeals his conviction and sentence for first degree felony murder, predicated on second degree kidnapping. We address some issues but others are rendered moot by our resolution of the dispositive issue. We conclude that the trial court erred by allowing the lead detective to testify that he believed Vodder was guilty. Because this error is of constitutional magnitude and is not harmless beyond a reasonable doubt, we reverse and remand for retrial.

We use our discretion to consider two important issues briefed by the parties that will occur on remand. We conclude that collateral estoppel did not and will not prevent the State from retrying Vodder for felony murder predicated on second degree kidnapping. We also conclude that if the State presents separate acts of kidnapping, as it did in the prior two trials, the trial court must give a unanimity instruction.

FACTS

Brett Snow went missing in late 2015. The last activity on Snow's cell phone was a text message received from Karen Nelson at 4:31 a.m. on December 3, 2015. Six minutes earlier that morning Snow had texted Nelson, which activated a cell tower in the vicinity of 7822 North Starr Road, Newman Lake, Washington.

Russell Joyce owned the property at 7822 North Starr Road, consisting of a house and a shop. Joyce lived in the apartment above the shop, Cheryl Sutton and Ken Stone lived in the house, and Al Guajardo lived in the makeshift bedroom in a corner of the shop.

Sutton, Stone, and Guajardo sold drugs on the property. Snow sold methamphetamine and heroin supplied by Sutton and Stone. Vodder, who also sold drugs, would come to the property two or three times per week and purchase drugs from Sutton and Stone.

In early December, Snow went to visit his friend Joyce in Joyce's upstairs apartment. According to Joyce, Sutton and Stone heard Snow's voice, ran upstairs and entered his apartment, bound Snow with a telephone cord, called Guajardo into hisapartment, directed Guajardo to hit Snow, and then the three took Snow downstairs to the shop.

Five days later, Joyce heard noises coming from the shop that sounded like a chain being pulled through something metallic attached to his wall. Joyce went downstairs and knocked on the shop door to find out what was happening. Guajardo and Vodder were in the shop. They did not open the door. Vodder claimed he had poached a deer. Sometime later, Guajardo threatened Joyce.

Sometime during those five days, Christopher Schoonover received a telephone call from Vodder's cell phone. It was Sutton. She asked Schoonover to do something that caused Schoonover to fear for Snow. Later, Vodder told Schoonover that Sutton had called him and he went to the Starr Road property. Vodder told Schoonover that he helped retrieve Snow and bring him back to the shop.

Vodder later told Schoonover what happened at the shop. Snow became "mouthy" and then Vodder and Sutton began slapping Snow. Report of Proceedings (RP) at 1411. Snow and Vodder then began using fists, and Snow was winning until Sutton grabbed a lawnmower blade and struck Snow on the head. Stone and Guajardo then entered the shop. Vodder told Schoonover that Sutton, Stone, and Guajardo then decided they would not take Snow to the hospital because he was critically injured. The three then draggedSnow into Guajardo's bedroom where Guajardo either shot or stabbed Snow. The three then took the body into the shop, cut it into pieces, and put the pieces into buckets. Vodder told Schoonover that he did not take part in the dismemberment or disposal of Snow's body but he did witness it.

Months later, Vodder drove by the Starr Road property with a friend and said he had once "taken care of somebody" at the property. RP at 1474.

First trial

Vodder was arrested in late 2016. By amended information, the State charged Vodder with first degree felony murder (predicated on first or second degree kidnapping), second degree felony murder (predicated on first or second degree kidnapping), and conspiracy to commit first degree kidnapping. The jury in the first trial determined that Vodder was not guilty of conspiracy to commit first degree kidnapping, but it could not reach a verdict on the charges of first degree and second degree felony murder.

Second trial

The State amended the charges to assert only one count—first degree felony murder (predicated on second degree kidnapping). During the second trial, the State called the lead detective, Detective Lyle Johnston. During cross-examination, defense counsel asked, "Did you tell [Vodder's] mother that you didn't think he did it?"RP at 1624. The State objected to the question as hearsay, but the court overruled the objection. The detective answered that he had not said anything like that to Vodder's mother. Defense counsel then asked, "You never had any sort of conversation where you said you felt like Mr. Vodder was in the wrong place at the wrong time and he wasn't culpable for Mr. Snow's disappearance or death?" RP at 1625. Again the State objected to the question as hearsay, but the trial court overruled it on the basis that the statement was an admission by a speaking agent. Through a series of questions and answers, the detective recounted the statements between him and Vodder's mother. The detective testified that he told Vodder's mother that he "thought that there were other people responsible in this."¹ RP at 1631.

During redirect, the following exchange occurred:

[DEPUTY PROSECUTOR:] You were asked about a conversation you had with Mr. Vodder's mother.

[DETECTIVE JOHNSTON:] Yes.

[DEPUTY PROSECUTOR:] You had said that you believed—you arrested Mr. Vodder?

[DETECTIVE JOHNSTON:] Yes.

[DEPUTY PROSECUTOR:] Did you believe he was guilty of the crime?

[DETECTIVE JOHNSTON:] Yes.

[DEPUTY PROSECUTOR:] Did you believe others were also guilty of the crime?

[DETECTIVE JOHNSTON:] I did.

RP at 1653.

Vodder objected to these questions as calling for improper opinion evidence. The trial court overruled his objection on the basis that his cross-examination had opened the door to the detective's opinion testimony.

After the parties presented their evidence, the trial court instructed the jury. The instructions did not require the jury to unanimously agree on whether Vodder participated in the initial abduction or the later abduction. The State argued that he participated in both.

The jury returned a verdict of guilty on the sole count of first degree felony murder (predicated on second degree kidnapping). The trial court sentenced Vodder to 344 months of incarceration. Vodder appealed to this court.

ANALYSIS

Vodder raises several arguments. The first issue we address is dispositive.

IMPROPER OPINION TESTIMONY

Vodder argues the trial court erred by allowing Detective Johnston to testify that he thought Vodder was guilty of the crime. The State does not dispute that such testimony typically is improper.

"No witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference." State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). This prohibition has roots in the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. Both constitutional provisions guarantee the right to trial by an impartial trier of fact. A witness's opinion on the guilt of the accused violates the jury trial right by improperly invading the ultimate question that is for the jury alone to decide. State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213 (2014); State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (plurality opinion). Here, the trial court allowed the lead detective to testify that he believed Vodder was guilty of the crime.

The parties disagree on whether defense counsel's cross-examination opened the door to the lead detective's opinion that Vodder was guilty. We first observe that whatever the detective told Vodder's mother might have been excludable under ER 403. The State, rather than raising an ER 403 objection, raised a hearsay objection. The trial court properly overruled this objection and allowed the State's speaking agent to answer the questions.

The detective testified that he told Vodder's mother that he "thought that there were other people responsible in this." RP at 1631. We note that defense counsel'squestions to the detective were limited to what he told Vodder's mother; defense counsel never asked about the detective's unexpressed opinions.

On redirect, the deputy prosecutor went beyond what the detective told Vodder's mother. He asked whether the detective believed Vodder was guilty of the crime. The detective answered, "Yes." RP at 1653. Defense counsel objected, but the trial court overruled the objection. This was error.

In State v. Lang, 12 Wn. App. 2d 481, 487, 458 P.3d 791 (2020), we explained:

The open door doctrine is nothing more than a theory of expanded relevance. It applies when a defendant waives the benefit of an evidentiary or constitutional protection by broaching a topic that would ordinarily be off limits. Once a defendant opens the door to an otherwise prohibited topic, the State can introduce relevant responsive evidence. Although the open door doctrine provides the State with a broader landscape of relevant evidence, it does not provide license to disregard constitutional and evidentiary limitations on the admission of evidence.

(Emphasis added) (citations omitted).

Here, the open door doctrine allowed the State to question the lead detective about his statements to Vodder's mother. The doctrine did not provide license to disregard constitutional and evidentiary limitations by providing opinion evidence of guilt. Those limitations were violated here. As for evidentiary limitations, the detective was not qualified under ER 702 to testify...