Opinion
61167-4-I
12-05-2011
STATE OF WASHINGTON, Respondent, v. MATTHEW MOI, aka MATHEW WILSON MOI, Appellant.
UNPUBLISHED OPINION
Becker, J.
Keith McGowan, a member of a gang known as the "Hoovers, " was murdered at the door of his Des Moines apartment on the night of October 19, 2004. The State charged Matthew Moi with first degree premeditated murder. The first trial resulted in a hung jury. At the second trial, Moi was convicted as charged. We affirm the conviction.
JURY VENIRE
Over Moi's objection, the trial court drew a jury venire from only a portion of King County, consistent with King County Local General Rule 18 (KCLGR) and RCW 2.36.055. Moi contends that he was tried by an unconstitutionally assembled jury in violation of article I, section 22 of the Washington Constitution. The Washington Supreme Court recently rejected this argument in State v. Lanciloti, 165 Wn.2d 661, 201 P.3d 323 (2009).
Moi additionally contends that RCW 2.36.055 and KCLGR 18 created separate jury districts, thereby violating article IV, sections 5 and 6 of the Washington Constitution. He relies on State ex rel. Lytle v. Superior Court, 54 Wash. 378, 103 P. 464 (1909). At issue in Lytle was a statute granting authority to county commissioners to divide the county into two or more distinct judicial districts if approved by the county's superior court. The purpose of the statute was to enable sessions of the superior court to be held at places other than the designated county seat. The court construed the statute as authorizing independent and distinct superior courts within each county, each with its own jurisdiction, procedures, records, seals, jail, name, and "its own list of trial jurors." Lytle, 54 Wash. at 384-85. In each district, the place of trial would be determined "as if each district was a separate and distinct county." Lytle, 54 Wash. at 385.
The court explained that article IV, section 5 limits every county to one superior court and that article IV, section 6 gives the superior court original jurisdiction in a broad range of cases. These sections, read with all of article IV, create "a complete system of superior courts." Lytle, 54 Wash. at 389. The court invalidated the statute because it authorized dividing up the jurisdiction of a superior court into "as many parts as there may be districts created by the board of county commissioners." Lytle, 54 Wash. at 391.
Lytle does not control here. The contested regulations do not divide the jurisdiction of the King County Superior Court. They do not allow the creation of new districts as if each could be a separate and distinct county. They merely allow juries to be drawn from portions of the county, consistent with article I, section 22. The regulations do not violate article IV, sections 5 and 6.
Moi also argues the regulations violate the Sixth Amendment of the United States Constitution and RCW 2.36.080. The Sixth Amendment prohibits the systemic exclusion of distinctive groups from jury pools. Lanciloti, 165 Wn.2d at 671. The statute cited by Moi requires that "all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court." RCW 2.36.080(1). Moi has not carried his burden of a factual showing that any distinctive groups were excluded or that the jury pool was selected in an unfair or nonrandom manner. We therefore decline to consider his argument without prejudice to a future challenge. See Lanciloti, 165 Wn.2d at 672.
SIDEBAR DURING VOIR DIRE
At the start of voir dire, the trial court asked prospective jurors if they would suffer any hardship by serving on a four-week-long case. In open court, the judge asked the potential jurors who claimed hardship to state their reasons, and they did so. The judge then conducted two sidebars with counsel in the hallway. The judge excused jurors after each sidebar. Moi was present in the courtroom for the hardship hearing and all of voir dire but was not included in the sidebars in the hallway. Moi argues that his right to attend trial under the Fifth and Sixth Amendment and article I, section 22 of the Washington Constitution was violated when he was excluded from the sidebars.
In our original decision in this case, State v. Moi, noted at 154 Wn.App. 1004 (2010), we concluded that Moi's right was not violated. Moi petitioned for review, presenting four issues.
Our Supreme Court then issued its decision in State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011). Thereafter, the Supreme Court granted Moi's petition for review only on the issue of the right to be present at trial. The court remanded the case to us for reconsideration in light of Irby.
Having reconsidered the issue in light of Irby, we adhere to our original decision.
The core of the constitutional right to be present at trial is the right to be present when evidence is presented. But the right also extends to situations when the defendant's presence is related to the fullness of his opportunity to defend against the charge. In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). A defendant therefore does not have a constitutional right to be present during in-chambers or bench conferences between the court and counsel on legal matters, at least where those matters "do not require a resolution of disputed facts." Lord, 123 Wn.2d at 306. Lord was absent during hearings where the court announced rulings on matters that had already been argued. He was also absent for sidebar conferences that involved only discussion of matters of law. The court held he had no constitutional right to be present during any of the proceedings. Lord, 123 Wn.2d at 306-07. Irby does not overrule or alter the holding of Lord.
In Irby, the trial court dismissed certain potential jurors for hardship and for cause after reviewing their responses to a questionnaire and consulting with counsel in an e-mail exchange in which Irby had no opportunity to participate. The Supreme Court found a constitutional violation because the potential jurors were dismissed before Irby had even seen them. The e-mail exchange began the work of empanelling the jury. "The work was ongoing when the trial judge emailed Irby's attorneys and the prosecutor about potentially dismissing 10 jurors, not only for hardship, but because 4 jurors had parents who had been murdered." Irby, 170 Wn.2d at 884. That work constituted a critical stage of trial during which Irby had a right to be present. His absence violated his right to appear and defend in person under article I, section 22 of the state constitution as well as the due process clause of the Fourteenth Amendment. Irby, 170 Wn.2d at 885.
This case differs significantly from Irby. Here, there was a colloquy in open court between the judge and the prospective jurors. Irby was present throughout. The court explained that the trial involved a charge of premeditated murder and that it was likely to last three to four weeks. The court then posed the question of hardship: "So, first thing we're going to do is ask, based on this timeframe, does this cause an unusual hardship to anyone?" Numerous members of the panel raised their hands. Questioned individually by the court, each gave their reasons. Moi was present to see and hear and react and analyze.
After hearing the stated reasons for claiming hardship, the judge had a private discussion, or sidebar, with the lawyers in the hallway. Upon returning to the courtroom, the judge announced the names of those who would be excused for hardship. After this first sidebar, some individuals raised new hardship concerns. Moi was again present for that colloquy. The court and counsel took another sidebar, after which the court dismissed more prospective jurors.
Excusing jurors for hardship is a discretionary function of the court. RCW 2.36.100. In fact, it is a function that can be delegated to court staff. GR 28(1). Moi thus had no right to be present at the sidebar regarding hardship. The topic discussed was a matter within the judge's discretion that did not require resolution of disputed facts. Moi was present throughout voir dire and able to consult with counsel and object at all appropriate points in the proceedings. Nothing prevented him from sharing with counsel and the court any comments or insights he may have had concerning the jurors who asked to be excused for hardship.
We conclude the trial court did not violate Moi's right to be present at trial.
Cross-examination by telephone
The State presented forensic scientist Matthew Noedel as an expert witness. Noedel did not testify at the first trial. Noedel explained how he inferred where the gunman stood by determining the trajectory of the bullets fired. The point of his testimony was two-fold: (1) that the gunman stood where Moi was last seen by witnesses seconds before the shooting; and (2) that it would have been difficult for Moi to squeeze past the shooter in the narrow hallway to escape as he claimed he did.
Noedel testified in the courtroom on October 30, 2007. The State conducted direct examination, and the defense conducted part of cross-examination. At 4:30 p.m., Moi's counsel told the court that cross-examination was going on longer than he had anticipated. The court called for a sidebar.
After the sidebar, the court announced that it was ending testimony for the day and that Noedel would finish testifying on Thursday, November 1, by phone. Moi did not object. The court put the sidebar on the record after excusing the jury and Moi for the day: "We agreed in our sidebar that Mr. Minor would finish his cross and if there was any redirect it would be by phone on Thursday." On November 1, Moi concluded cross-examination by speaker phone. The parties then conducted redirect and recross by speaker phone.
Moi argues that the court violated his Sixth Amendment and article I, section 22 right to confront the witnesses against him face-to-face by allowing Noedel to testify by telephone. The State responds that the agreement recorded after the sidebar shows that Moi waived his right to confront Noedel face-to-face.
Waiver of a fundamental constitutional right must be made knowingly, voluntarily, and intelligently. State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). The defendant in Thomas did not testify. He argued on appeal that the trial court was obliged to advise him of his constitutional right to testify in his own behalf. Rejecting this argument, the Supreme Court held that it is the duty of defense counsel to advise the defendant of the right to testify, not the duty of the court. The court reasoned that trial judges should not be required to intervene in the attorney-client relationship to independently advise defendants of rights their attorney might advise waiving for tactical reasons. A trial judge "may assume a knowing waiver of the right from the defendant's conduct." Thomas, 128 Wn.2d at 559.
Thomas controls here. The duty fell on defense counsel to instruct Moi of his right to confront all witnesses against him face-to-face. Counsel's choice to conclude cross-examination by telephone might well have been tactical so as to not further delay the conclusion of cross-examination. When the defense continued to cross-examine the witness by telephone without objection, the court could assume a knowing waiver, especially in light of the recorded sidebar agreement. The court was not obliged to obtain an express waiver from Moi himself.
Motive Evidence
The State's theory of the crime was that Moi wanted to kill a member of the Hoover gang in part to avenge the murder of his best friend Jonathon Otis, who had been the victim of a gang-related killing some nine months earlier. Otis' murder was never solved, but Moi knew the Hoover gang was rumored to be responsible. The State wanted to admit evidence that Moi wore a shirt bearing a picture of Otis every day for six months after his death and sometimes slept on his grave. This evidence was not offered during the first trial.
The State argued that Moi's extreme level of grief over his friend's murder, combined with Moi's admission that his mother had recently been "jumped" and robbed by Hoover gang members, showed Moi's motive to kill a Hoover gang member.
Before trial, Moi objected on relevance grounds given the amount of time that had elapsed since the murder of Otis. The trial court decided to admit the evidence as probative of motive. We review a trial court's decision to admit evidence for an abuse of discretion. State v. Cook, 131 Wn.App. 845, 850, 129 P.3d 834 (2006).
Circumstantial evidence of motive is relevant in a homicide where there is little other explanation for the murder. State v. Matthews, 75 Wn.App. 278, 877 P.2d 252 (1994) (evidence of defendant's straitened financial circumstances was admissible to support theory that he murdered a jewelry store owner who was a "veritable stranger" in order to cover up an interrupted robbery), review denied, 125 Wn.2d 1022 (1995). Moi testified that he and McGowan were strangers. There was evidence that they were once incarcerated together in close quarters for a short time, but the only evidence explaining why Moi would want to kill McGowan was that Moi had grievances against the Hoovers and McGowan was a Hoover. Following Matthews, we conclude the trial court did not abuse its discretion in admitting the evidence.
Statement to Police
Moi's former girl friend, Daisy Hauro, told police that on the night of McGowan's murder, Moi told her he had shot someone. Later, when police were interviewing Moi after his arrest, they asked him why he would say this to Hauro. Moi responded that it was just to see how she would react. He told them he had previously told her as a joke that he had to move to Seattle because he killed someone in Louisiana.
Over Moi's objection and after extensive pretrial argument, the court ruled these statements admissible. At trial, a police officer testified about Moi's statement during his interview. Moi testified that when he told Hauro he had shot someone, he was "just playing" with her. Hauro testified and said she thought Moi was joking when he made the remark on the night of the murder. But she also said that Moi had never joked with her before about killing anyone.
Moi argues that it was unduly prejudicial to allow the jury to hear that he had made a remark about killing someone in Louisiana, even if it was presented as a joke.
The statement was not offered as proof that Moi had killed before. It was offered to show that Moi was concerned about the significance that might be given to his confession to Hauro on the night of the murder, and that he tried to minimize that confession by describing it as part of a pattern of joking comments about murder that were not intended to be taken seriously. Showing that there was no such pattern, and that Moi lied to police to explain away his confession to Hauro, was highly probative of his guilt.
Moi did not request a limiting instruction. The jury listened to the police interview audiotape and read the transcript. Moi testified and was able to give his version of what he meant. The statement about killing someone in Louisiana was always presented in the context that it was a lie or joke. We conclude the trial court did not abuse its discretion by determining that the statement was more probative than prejudicial.
Opinion Testimony
Detective Ross Stuth was one of the detectives who interviewed Moi after his arrest. Detective Stuth made several comments in his testimony that Moi challenges as improper opinion testimony requiring reversal. After each such comment, Moi objected and the trial court instructed the jury to disregard the comment. The court denied Moi's motion for a mistrial based on the comments but instructed Stuth to refrain from such comments in subsequent testimony after excusing the jury for the day. Moi argues that the improper opinion testimony contributed to an accumulation of errors requiring reversal. We review a trial court's decision to deny a mistrial for an abuse of discretion. State v. Brown, 132 Wn.2d 529, 565, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
Detective Stuth was asked why he met with Moi to take his statement. Stuth answered it was "to find out what he knew of the shooting and to find out why he did the shooting." Detective Stuth described Moi as "animated" at their first meeting. Asked what he meant by this, Stuth answered that Moi was "gesturing" and "cordial" and was talking as if he had "this . . . all planned out where he had been and what he was doing." Asked to describe Moi's emotional responses during their initial conversation, Stuth answered that at the time, Moi appeared "scripted." The court sustained the objection to this comment and struck the remark about Moi appearing "scripted." But the detective repeated the comment later when comparing Moi's emotional demeanor during his initial interview to the calm he displayed in giving a taped statement: "When we confronted him about his mother, he became very upset, near tears, if I remember right; and when we went on tape, he was somewhat scripted."
No witness may offer testimony in the form of an opinion regarding the guilt or veracity of a defendant. A police officer's testimony carries a special aura of reliability with a jury. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). The trial court was rightly concerned that Detective Stuth was making a persistent effort to portray Moi as someone who had premeditated exactly what he would say and how he would act during his interview with police.
Nevertheless, the comments did not directly state Stuth's personal belief that Moi committed premeditated murder. "Scripting" was not a theme perpetuated by other witnesses or in argument. The court instructed the jury to ignore all comments objected to by Moi. Jurors are presumed to follow the court's instructions. State v. Rice, 120 Wn.2d 549, 573, 844 P.2d 416 (1993). And because the jury heard the recorded interview of Moi played in open court, the jury could decide for itself whether or not Moi's answers sounded scripted. We conclude the court did not abuse its discretion by denying the mistrial motion.
Premeditation Argument
In closing argument, the prosecution told the jury several times that to be found guilty of premeditated murder, Moi needed to premeditate killing any human being, not McGowan specifically:
Murder in the First Degree requires that premeditation, a premeditated intent to kill someone. Not to kill Keith McGowan and that's important. Mr. Moi doesn't have to intend to kill any certain person. He has to intend to kill and premeditate it, in other words deliberate about it and decide that's the thing to do.
What you have to be convinced beyond a reasonable doubt is that on October 19th, in the State of Washington, the defendant shot Keith McGowan. He intended to cause Keith McGowan's death. His intent was premeditated, so he thought it beforehand, a plan, an intent to kill that was formulated in advance of doing the killing and Keith McGowan died as a result of that.
Moi contends that the prosecutor's argument was inconsistent with instruction 14, the to convict instruction. He interprets the instruction as requiring proof that he acted with the premeditated intent to kill McGowan. That is not an element the State needs to prove. See State v. Price, 103 Wn.App. 845, 853, 14 P.3d 841 (2000), review denied, 143 Wn.2d 1014 (2001). But Moi relied on the principle that the instruction given at trial becomes the law of the case. State v. Willis, 153 Wn.2d 366, 374-75, 103 P.3d 1213 (2005).
Moi's argument is new on appeal. He did not raise any issue below about instruction 14. He did not object during the State's closing argument nor did he contradict the prosecutor's interpretation of the instruction in his own closing argument. When a party fails to object to closing argument at trial, this court will not review the misconduct unless he proves the prosecutorial misconduct was "so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct." State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Instruction 14 did not require proof that Moi's premeditation was specifically focused on McGowan. It properly informed the jury that to convict Moi of first degree murder, the jury needed to find that he premeditated his intention to kill someone and that when he encountered McGowan, he intended to cause McGowan's death:
(1) That on or about October 19, 2004, the defendant shot Keith McGowan multiple times;
(2) That the defendant acted with intent to cause the death of Keith McGowan;
(3) That the intent to cause the death was premeditated;
(4) That Keith McGowan died as a result of the defendant's acts; and
(5) That the acts occurred in the State of Washington.
The prosecutor's closing argument did at times misstate the elements set forth in instruction 14, although not in the way Moi argues. The instruction read, "That the defendant acted with intent to cause the death of Keith McGowan."
The prosecutor said, "Mr. Moi doesn't have to intend to kill any certain person." But the prosecutor said soon after, "What you do have to be convinced beyond a reasonable doubt is that on October 19th, in the State of Washington, the defendant shot Keith McGowan. He intended to cause Keith McGowan's death." The prosecutor's argument was somewhat imprecise, but it was not flagrantly ill-intentioned. There is no indication the prosecutor was attempting to dupe the jury into ignoring the to convict instruction by misstating the element of intent. On the element of premeditation, the prosecutor accurately stated that Moi only had to premeditate killing someone, not McGowan specifically. This was consistent with the instruction.
If Moi had objected, the court could have clarified the meaning of the instruction for the jury. Because there was no objection, we conclude Moi has waived review of his claim of prosecutorial misconduct in closing argument.
As Moi does not prevail on his assignments of error, we do not reach his argument on cumulative error.
Affirmed.
WE CONCUR.