### FILED JUNE 14, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III INTHE COURT OF APPEALS OF THE ST ATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,



### v. MATTHEW OWENHASTINGS, Appellant. ) ) ) ) ) ) ) ) ) No. 32876-7-111

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- MatthewHastings appeals the trial court's denial ofhis motion for a new trial on charges ofresidential burglary, violation ofa protection order, andtheft inthe third degree. He argues that each oftwotrial irregularities deprived him ofa fair trial:jurors sawhim being escorted from the courtroombyjail staff, thereby violatinghis righttobepresumed innocent; and the trial court failed to notify the lawyers ofajuror question inviolation ofCrR6.IS(t)(l), thereby denying him a right to counsel at a critical stage oftrial. The two irregularities occurring at trial were harmless. Forthatreason, and becauseMr. Hastings raises no meritorious challenges in a pro se statement ofadditional grounds, we affirm. FACTS AND PROCEDURAL BACKGROUND Before spring 2014, Nancy Newman and MatthewHastings lived together on andState v. Hastings No. 32876-7-111
offfor about seven years, in a cabin she was purchasing under contract. When their relationship deteriorated, Ms. Newman obtained or renewed a protection order against Mr. Hastings on March 26, 2014. A few days later, Mr. Hastings called Ms. Newman and asked ifhe could stop by her house to collect his belongings. She told him that in light ofthe protection orderhe needed to contactthe sheriff. Almost a month later, on April 23, Mr. Hastings went to Ms. Newman's home while she was away and entered, using a key he claims to have had for years. In addition to picking up some ofhis own belongings, he took some items that Ms. Newman claims belonged to her: ajewelry hanger, somejewelry, and a dog that had lived with the couple for almost seven years. Ms. Newman had purchasedthe dog as a six-week-oldpuppy. Mr. Hasting claims she boughtthe dog, which he named Sparkle, as a gift for him. Ms. Newman claims she boughtthe puppy, which she named Riley, for herself. Ms. Newman returned homejust in time to see Mr. Hastings drive away in his

van. She called the sheriffs office and reported the theft. Officer Ian Edwards, who was familiar with Mr. Hastings, located him about a mile from Ms. Newman's house. He found the dog and thejewelrywith Mr. Hastings. Mr. Hastings was charged with residential burglary, violation ofa protection order, and theft in the third degree. When trial took place that October, it took only one day to select thejury, present the evidence, instructthejurors, and deliver closing arguments. Amongthe evidence presented was Ms. Newman's testimony that she saw Mr. Hastings, unauthorized, leaving 2State v. Hastings No. 32876-7-111
the vicinity ofher cabin, and her identification ofher belongings taken and found in Mr. Hasting's possession. Mr. Hastings testified he believedthe dog was his, although he intended to return it to Ms. Newman since he expected to be on the road for atime. He toldjurors he took thejewelry hanger andjewelry because some ofthejewelrybelonged to him but was tangled up withjewelry belongingto Ms. Newman. He claimed he wanted to have his property and hers sorted out in the presence ofa third party. Following an unknown period ofdeliberation on that first trial day, thejurors were excused for the night. After the trialjudge left the bench, thejurors began leaving, and Sergeant Garbe, 1a member of jail staff, approached Mr. Hastings and escorted him from the courtroom. Mr. Hastings's attorney notified the courtthat afternoon ofher concern thatjurors had seen Mr. Hastings being escorted outby the sergeant. The following morning, she providedthe following record ofwhat had happened: After the court left the bench and as thejurors were beginningto walkbehind counsel tables toward the courtroom door,jail Sergeant Garbe loudly told Mr. Hastings, "Let's go." I was aware thatjurorswere only a few steps away and instructed Mr. Hastings in a whisper to waituntil the jurors were out ofthe courtroom. I also tried to catch Sgt. Garbe's attention to discreetly ask him to wait until thejurors were out ofthe room, buthe did not see or acknowledge me. Sgt. Garbe again told Mr. Hastings, "Let's go", causing Mr. Hastings to step towards him directly in the path of jurors who were now leaving the courtroom. Sgt. Garbe then physically took Mr. Hastings by the arm and escorted him bodily from the courtroom, literally in the middle of jurors who were also leaving. One otherjail security officerwas present and accompanied them.

1The sergeant's first name does not appear in the record. 3State v. Hastings No. 32876-7-111

Clerk's Papers (CP) at 87-88. Mr. Hasting's lawyer explained that she followed Sergeant Garbe into the hallway, where she told him, "[Y]ou are supposedto waituntil thejury is out ofthe room." Report ofProceedings (RP) at 124. The sergeantresponded, "Oh, I'm sorry." 

### Id. Sincejurorswere still in the vicinity, he took

### Mr. Hastings overto a bench and sat there with him while the finaljurors left. 

### Mr. Hastings argued thejail escort in the view of jurorswas governmental misconduct andthe charges against him should be dismissed under CrR 8.3(b). Afterthe courtquestioned counsel and ascertained that no words were exchangedwiththejurors and there were "[n]o shackles, no handcuffs, simply [] the presence ofstaff," the court denied the motion. RP at 125. During deliberations later that day, thejury submitted a question to the court about itsjury instruction 12, the "to convict" instruction on residential burglary. The instruction identifiedthe following elements the State was required to prove: (1) That on or about the 23rd day ofApril, 2014, the defendant entered orremained unlawfully in a dwelling at 10246 Mill Creek Road; (2) Thatthe entering orremaining was with intentto commit a crime against a person orproperty therein; and (3) Thatthis act occurred in the State ofWashington. CP at 105. Thejuror's question to the court was: Regarding "acrime" in Instruction No. 12, can that crime be[:] A. Violation ofrestraining order 4State v. Hastings No. 32876-7-III

B. Theft C. Both D. Just entering unlawfully. CP at 124. Without contactingthe lawyers and notifying them ofthejury's question, the courtresponded, "Youhave the Court's instructions on the law. Please refer to your instructions and continue to deliberate." Id. Laterthat day, thejuryreturned a verdict of guilty on all counts. Shortly after the trial, Mr. Hastings moved for a new trial, relying on boththe jury'sviewing ofSergeant Garbe escorting him from the courtroom and the trial court's failure to notify the lawyers ofthejury's question. He contendedthat had his lawyer been notified ofthejury's question, he would have asked the court to instruct thejury that the intent to commit a crime element of jury instruction 12 could not be satisfied by option "D.," ("Just enteringunlawfully"). The court denied the motion. Mr. Hastings appeals. ANALYSIS Mr. Hastings appeals the trial court's denial ofhis motion for a newtrial, arguing he was entitledto a new trial on both grounds raised in the trial court. Under CrR 7.5(a)(5), the court may grant a defendant a newtrial when it affirmatively appears the defendant was materially affected by an "[i]rregularity in the proceedings ofthe court, jury orprosecution, or any order ofcourt, or abuse ofdiscretion, by which the defendant

was prevented from having a fair trial." 

### 5State v. Hastings No. 32876-7-111

We review a trial court's denial ofa motion for a new trial for abuse ofdiscretion. State v. Mullen, 171 Wn.2d 881, 905, 259 PJd 158 (2011). "Atrial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons." State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). Alleged violations ofthe right to an impartialjury and the presumption of innocence are reviewed de novo. State v. Johnson, 125 Wn. App. 443,457, 105 P.3d 85 (2005). Jury viewing of jail escort Mr. Hasting argues that when Sergeant Garbe escorted him from the courtroom in front ofthejury, his right to be presumed innocent was violated. "Theright to a fair trial is a fundamental liberty secured by the Fourteenth Amendment." Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). "Courts have recognized thatrestraining a defendant during trial infringes upon this rightto a fair trial for several reasons," including that it violates a defendant's right to be presumed innocent. State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). "The presumption ofinnocence, although not articulated in the Constitution, is a basic component ofa fair trial under our system ofcriminaljustice." Estelle, 425 U.S. at 503. "Courts have recognized that the accused is thus entitled to the physical indicia of innocence which includes the right ofthe defendant to be brought before the courtwith

6State v. Hastings No. 32876-7-III
the appearance, dignity, and self-respect ofa free and innocent man." Finch, 137 Wn.2d at 844.Courts should closely scrutinize whether a practice challenged as affecting the presumption ofinnocence had a negative effect on thejudgment of jurors, evaluating "the likely effects 'based on reason, principle, and commonhuman experience.'" State v. Gonzalez, 129 Wn. App. 895, 900-01, 120 P.3d 645 (2005) (quoting Estelle, 425 U.S. at 504). Handcuffing should not be authorized by the court except to eitherprevent escape, prevent the accused from injuring others and to maintain a quiet and peaceable trial. State v. Early, 70 Wn. App. 452, 462, 853 P.2d 964 (1993). The transport byjail staffof

even an unshackled, unhandcuffed defendant should be done outside the presence of jurors or prospectivejurors. Nonetheless, the mere fact that ajury sees an inmate under restraint-even an inmate wearing shackles-doesnot mandate reversal. In State v. Rodriguez, 146 Wn.2d 260,270, 45 P.3d 541 (2002), our Supreme Court spoke approvingly ofseveral earlier decisions holding thatjurors' passing exposure to a defendant under restraint does not warrant a mistrial. In [State v. ]Gosser, [33 Wn. App. 428,435, 656 P.2d 514 (1982)] the defendant moved for a mistrial, contendingthat his right to a fair trial was prejudiced when severaljurors observed his shackles being removed outside the courtroom. He did not request a curative instruction and could point to nothing otherthan thejury'sbriefview ofhim in shackles to support his contention that only a new trial would cure the prejudice. The court affirmed the trial court's denial ofthe motion for mistrial. Similarly, 7State v. Hastings No. 32876-7-111

in State v. Sawyer, members ofthejury observed a deputy handcuffingthe defendant at the end ofthe first day oftrial. This court heldthatthe prompt admonition to thejurythe following day cured the error, and affirmed the denial ofmotion for mistrial. State v. Sawyer, 60 Wn.2d 83, 371 P.2d 932 (1962). In State v. Russell, 33 Wn. App. 579, 588, 657 P.2d 338 (1983), a deputy sheriffstopped the defendant as he was attemptingtojoinhis attorney at a sidebar, which defendant contended created a prejudicial inference thatthe defendantwas dangerous. The defendant did not request a cautionary instruction but instead moved for a mistrial. The Court of Appeals affirmed the trial court's denial ofthe motion, holdingthat when an error can be obviatedbyjury instruction, the error is waived by failing to request such an instruction. Id. at 270-71. Other cases are in accord. See State v. Ollison, 68 Wn.2d 65, 68-69, 411 P.2d 419 (1966) (motion for mistrial denied notwithstanding that prospectivejurors saw defendants beingtransported to courtroom in handcuffs; no prejudice shown); State v. Jordan, 79 Wn.2d 480,482,487 P.2d 617 (1971) (same result where handcuffs were placed on defendant in the presence ofat least twojurors; no prejudice shown); Early, 70 Wn. App. at 462 (Even though handcuffing should ordinarily not bepermitted, "Mr. Early's mere appearance in handcuffs duringjury selection does not indicate the incident 'inflamed or prejudiced' thejurors against [him];" mistrial was properly denied.). Our Supreme Court has placed on the defendantthe obligation to object orrequest

a curative instruction ifhe or she fears ajury's negative inference from the fact that the defendant is restrained. Rodriguez, 146 Wn.2d at 270 & n.3 (citingState v. Elmore, 139 Wn.2d 250,273,985 P.2d 289 (1999)). Here, none was requested by Mr. Hastings, which is unsurprising. Mr. Hastings was merely taken bythe arm by Sergeant Garbe, an

8State v. Hastings No. 32876-7-111 arguably ambiguous action for anyjurors who noticed it; the nature ofthe escort did not suggestthat the sergeant viewed Mr. Hastings as dangerous. An admonition by the court not to attach significance to the fact that Mr. Hastings was in custody would have clarified, to all thejurors, that ajail escort had taken place. Becauseprejudice was unlikely, none is shown, and Mr. Hastings elected notto request a curative instruction, we find no abuse ofdiscretion in the trial court's denial of

a motion for a new trial on this ground. II. Violation of Cr R 6.15 anddeprivation of right to counselatall criticalstages of trial Mr. Hastings also argues that the trial court violated court rules when it responded to ajuryquestion without notifying counsel ofthe question, and that the court's violation deprived him ofhis constitutional right to counsel at a critical stage oftrial. CrR 6.1 S(f) deals with questions from thejury during deliberations. Itprovides in relevant part that thejury shall be instructed ofits right to pose a written question, and, if

a question is submitted by thejury, provides: The court shall notify the parties ofthe contents ofthe questions and provide them an opportunity to comment upon an appropriate response. CrR 6.15(f)(l). It is uncontested on appeal thatthe trial court did not notify the parties ofthe content ofthejury's question orprovide them an opportunity to comment on an appropriate response. In this regard, it erred.

9

# I I State 

### v. Hastings No. 32876-7-111 "[A]n improper communication betweenthe court and thejury is an error of constitutional dimensions." State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997) (citing State v. Rice, 110 Wn.2d 577,613, 757 P.2d 889 (1988)). But the communication may be so inconsequential as to constitute harmless error. Id. (citing State 

### v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983)). Where the court violates CrR 6.15(f)(l), "the defendant must raise the possibility that the communication between thejudge and thejury was prejudicial and the State may demonstrate that the errorwas harmless." State 

### v. Jasper, 158 Wn. App. 518,541,245 P.3d 228 (2010), ajf'd, 174 Wn.2d 96, 271 P.3d 876 (2012) (citing Bourgeois, 133 Wn.2d at 407). A constitutional

error is harmless "ifthe appellate court is convinced beyond a reasonable doubtthat any reasonablejurywould have reached the same result in the absence ofthe error." State v. Guloy, 104 Wn.2d 412,425, 705 P.2d 1182 (1985); State v. Langdon, 42 Wn. App. 715, 717, 713 P.2d 120 (1986). "Generally, where the trial court's response to ajury inquiry is 'negative in nature and conveys no affirmative information,' no prejudice results and the error is harmless." Jasper, 158 Wn. App. at 541 (quoting State v. Russell, 25 Wn. App. 933,948,611 P.2d 1320 (1980)). Mr. Hastings attempts to distinguishJasper and like cases on the grounds that "here thejurywas confused by an essential element requirement" and his lawyer would have proposed and requested a response that would correctthejury's confusion. Reply 10 

# IState v. Hastings No. 32876-7-III

Br. at 6. Ifreview ofthe instructions already given to thejurywere flawed or confusing and required clarification, Mr. Hasting'spointwould be well taken. Butthejury instructions were correct and clear. "Whetherto give a particular instruction to thejury is

a matter within the discretion ofthe trial court." Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996). Ifthe trial courthad notified the parties ofthejury's question, it would not have abused its discretion by referring thejurors back to the existing instructions. Mr. Hastings cannot showprejudice. Moreover, overwhelming evidence, including Mr. Hastings's owntestimony, established he committed the crime ofresidential burglary by entering Ms. Newman's home knowing it was in violation ofa protection order. We are convinced beyond a reasonable doubt that even ifthe parties had been notified ofthejury's question and the trial courthad agreed to provide the type ofresponse suggested by Mr. Hastings, thejury would still have found Mr. Hastings guilty based on his proven unlawful entry withthe proven intent to violate the protection order. Here, too, we find no prejudice from the court's error and therefore no abuse of discretion in its denial ofthe motion for a new trial. STATEMENT OF ADDITIONAL GROUNDS In a prose statement ofadditional grounds for review (SAG), Mr. Hastings raises four. Dismissedclaim. Mr. Hastings's first additional ground states: 11State 

### v. Hastings No. 32876-7-III
On June 17th, 2014[,] Cause No. 420297109 was dismissed in District Court, Judge Knowlton-City ofWalla Walla, Wa. On June 24th[,] 2014[,] Count 2 Cause No. 420297109 (Amended Information) by Prosecuting Attorney Michelle Mulhern charged me with offence [sic] that got dismissed, and I was convicted offrom Mulherns lies and government [sic] mismanagement. SAG at 1. Count 2 ofthe amended information charging 

### Mr. Hastings with violation ofa protection order states the orderhad been issued in Walla Walla District Court cause number 420297109. Included in ourrecord on review is a motion and order for dismissal in that matter, signed by Deputy Prosecuting Attorney Kelly A.B. Stevenson, moving for an order "dismissingthe charge in the above-mentioned matter with prejudice for the following

reason: 

### It appears the state will be unable to prove the absence ofa statutory defense beyond a reasonable doubt." CP at 71 (emphasis added). Notably, the motion and order bears a handwritten notation, "Vio. Pro. Order[,] Ass. 4[,] 3/25/14." Id. The violation of the protection order at issue in this case, a superior court case numbered 14-1-00140-9, is alleged to have occurred on April 23, 2014. A related document in the record-evidently a note to prosecutor Mulhern from Mr. Hastings, states that his attorney, Rob Olsen, "was there that day for me," meaning the date the charge was dismissed. CP at 73. Finally, also included in the record on appeal is correspondence to Mr. Hastings from his lawyer in the trial below (not Mr. Olson), evidently filed with the court by Mr. Hastings, which states in part:

12State v. Hastings No. 32876-7-111

I also spoke with Rob Olson, and he advises me that the district court case he represented you in is a different matter than this case. CP at 74. When Mr. Hasting tried to raise the asserted dismissal during trial, the State's objection and motion to strike were sustained, without any meaningfulprotest from his trial lawyer. The implication ofthe materials in ourrecord is thatMr. Hastings was charged with violating the protection order on March 25, 2014, and that charge was dismissed in June 2014. But at issue in the trial below was a separate violation ofthe protection order

on April 23, 2014. IfMr. Hastings has materials outside the record that demonstrate the protection order itselfwas dismissed at a time and for a reason that would be a defense to count two against him, his remedy is to file a personal restraintpetition (PRP). 2 State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991). Improper subpoena. Mr. Hastings next argues the State subpoenaed one ofhis witnesses, Thomas Reed, for the incorrect date. The police report filed on the date Mr. Hastings was arrested states that when Mr. Hastings was located and arrested onthe day ofthe burglary, he was sitting with Mr. Reed. Accordingto the police report, "[t]he

2 Mr. Hastings has attached materials to his SAGthat cannot be considered because they are outside ourrecord. Those would have to be submitted in support ofa PRP. (We do not mean to imply that his attachments are sufficient to demonstrate a defense to count two.) 13State v. Hastings No. 32876-7-III
second subject, who gave his name as Thomas Reed, was reading scripture from a bible and praying" during Mr. Hasting's arrest. CP at 2. Italso states:

Id. Mr. Hastings friend, Mr. Reed, appears to have numerous mental conditions that would limit his cognitive ability to determine right from wrong. Mr. Reed's mother was called and advised she would respond to pick him up. 

### Mr. Reedjustcontinued to read and sing songs from the bible during the entire contact.

RAP 2.5(a) states the general rule for appellate disposition ofissues not raised in the trial court: appellate courts will not entertain them. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). The reason for this rule is to afford the trial court an opportunity to correct errors, thereby avoiding unnecessary appeals and retrials. Smith v. Shannon, 100 Wn.2d 26, 37,666 P.2d 351 (1983). Assuming the State failed to subpoena Mr. Reed (and nothing in ourrecord indicates that it did), 3 the time to question his failure to appear was trial, not appeal. Nothing in our record indicates Mr. Reed's failure to appear was everraised during trial. We will not considerthe asserted error further. Jail escort. Mr. Hastings next reprises his appellate lawyer'sjail escort argument, but states that another officerparticipated in the improper escort. Itdoes not change our

3Here again, we disregard attachments to Mr. Hastings's SAG that do not appear in the appellate record. 14

# I

I State v. Hastings No. 32876-7-111 analysis. The issue was adequately addressed by counsel and will not be reviewed again. See RAP 10.lO(a). Objectionable Juror 4. Finally, Mr. Hastings complains that aftertrial began, juror4 notified the court that she recognized Ms. Newman, the victim, as her local librarian. This was broughtto the attention oflawyers for both parties. Since Mr. Hastings did not ask thatjuror4 be excused at that time, the issue was notpreserved. RAP 2.5(a). Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. 

# ?JiloctJ~,~- Siddoway, J. WE CONCUR: 

# 1 s Fe~l 

## j

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