IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON o STATE OF WASHINGTON, Respondent, No. 69835-4-1 CD m c >

TONY RAY THOMAS, AKA ANTONNIO RAY THOMAS, Appellant. DIVISION ONE

UNPUBLISHED OPINION FILED: October 6, 2014
Becker, J. — This opinion affirms appellantAntonio Thomas' conviction for assault in the second degree. We conclude Thomas received a fair and public trial. The victim ofthe assaultwas Vivian Heller, the grandmotherofThomas' three children and the mother of his former partner, Shant'e Spears. In late April 2012, Heller, her boyfriend Raymond Jennings, and Thomas' two older children were in a serious car accident on a road trip through California. Spears had allowed the children to go on this road trip but specifically forbade Jennings from driving the car. Spears did nottell Thomas aboutthe trip or ask his permission. Jennings was driving when the carwent over a cliffand was caught by two trees. The children incurred injuries in the accident. Heller called O
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### Spears to tell her aboutthe accident. Spears called Thomas. Spears and Thomas flew down to California to pick up their children. 

### On May 28, 2012, Heller and Jennings attended a Memorial Day party at a motorcycle club inthe Georgetown neighborhood. Thomas was also there. 

### Jennings and Thomas were both members ofthe club. Thomas walked into a back room with Heller. Helleremerged with a bloodied face. Jennings found her and took her to the hospital. Someone at the hospital called the police. Seattle 

### police officer Ryan Keith responded around 1:00 a.m. that night and observed that Heller had swelling in her face and a bloody and broken nose. He 

### photographed Heller's injuries and tookstatementsfrom Heller, Jennings, and a woman in the hospital room. Heller told the officerthat Thomas had backed her 

### upinto a large barrel and the club's fence and punched her repeatedlyin the face with his closed fist. 

### DetectiveAdam Thorp was the investigating officer. Based on witness statements and Officer Keith's photos, Thorp concluded he had probable cause to arrestThomas. He went to Thomas' residence to arrest him on June 4, 2012, 

### butThomas was notthere. Thorp put out a bulletin to other officers indicating 

### probable causeto arrest Thomas. As a result, anotherofficercontacted Thomas and arranged for him to come to the police station. 

### Thomas was charged and convicted ofassault in the second degree. This appeal followed.No. 69835-4-1/3
Probable Cause Testimony 

### Thomas contends the trial court erred indenying his motion for mistrial 

### made after Detective Thorp gave testimony about his beliefthat he had probable

cause to arrest Thomas. 

### An important fact bearing on this issue is that Detective Thorp was called

as a defense witness. On direct examination, defense counsel introduced the 

### topic of probable cause byeliciting the detective's testimony that he believed he had probable causeto arrestThomas when he went to his residence onJune4. Q. Now, at the time you went out on June 4th to the residence where Mr. Thomas was living, at thattime you believed you had 

### probable cause to arrest; am Iwrong or rightaboutthat? A. That is correct, Ibelieved Ihad probable cause. 

### Q. All right. Now, in the meantime afterthatdate, you did not contactthis person? A. Correct. 

### Q. Now, Mr.Thomas was arrested on what date? 

### A. He was arrested by a different officer, as a matter of fact, on— 

### oh, gosh, Ibelieve itwas June 7th. Yes. Q. And that other officer was who? A. Officer Howard. 

### Q. All right. Andthatwas it per your instructions? 

### A. Yes, Ihad completed a bulletinforMr. Thomas. Officer Howard had seen that bulletin and that's when he contacted me and 

### stated he knew the building managerand he set up a meeting with Mr. Thomas to show up atthe North Precinct. 

### Q. Andwhatwas the purpose of his coming to the North Precinct? A. To obtain a statementfrom him, gethis side ofthe story and make a determination from there what his future would be, whether he'd be placed in custody or not. 

### Q. But you had already decided there was probable cause to arrest? A. That's correct. 

### On cross-examination, the prosecutorasked Thorp to clarifythe basis for his finding ofprobable cause:No. 69835-4-1/4 

### Q. Now,when you had established that—you indicated thatyou had PC [probable cause], butfor those of us less familiar with what that means, what does PC mean? A. PC is probable cause, and that is essentially authority to arrest a person. Ibelieve criminal activity has occurred and Ican arrest the suspect who conducted that criminal activity. Q. What is—in this case whatwas itthat led you to believe that you had probable cause to arrest Mr. Thomas? A. It was a combination of Ms. Heller's statement both to the initial responding officer, herfollow-up statementto me, and the photographic evidence. They all supported probable cause for assault. Q. Now, in orderto make that determination inyourtraining and experience, does a detective necessarily—or an officer necessarily had to have talked to a suspect in orderto speak with them prior to making a probable cause determination? A. No, not at all. Q. And can you tell us why, orwhat do you mean by that? A. The facts can speakfor themselves. Again, the photographs are facts. That shows that she was severely assaulted, and her statement—everyone else's statementthat spoke with the responding officer, they were all consistent in naming Mr. Thomas as the individual who gave herthose injuries. There
was no— Atthis point, defense counsel objected. The trial court sustained the objection and stated that probable cause is not the standard at trial. However, when Thomas later moved for a mistrial, the trial court denied the motion. Thomas contends the motion should have been granted because the detective's testimony about probable cause was an improper opinion on guilt. The standard of review for denial of a motion for a mistrial is abuse of discretion. State v. Perez-Valdez. 172 Wn.2d 808, 858, 265 P.3d 853 (2011). A mistrial should be granted only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant willbe tried fairly. State v. Weber, 99 Wn.2d 158, 165, 659 P.2d 1102 (1983).No. 69835-4-1/5
An accused is guaranteed the right to a fair trial by an impartialjury. U.S. Const, amend. VI; Wash. Const, art. I, §§ 3, 21, 22. No witness may offer testimony inthe form ofan opinion regarding the guilt ofthe defendant. City of Seattle v. Heatlev, 70 Wn. App. 573, 577, 854 P.2d 658 (1993), review denied. 123 Wn.2d 1011 (1994). Washington courts do not take an expansive view of claims that testimony constitutes an opinion of guilt. Heatlev, 70 Wn. App. at 579. We do not regard the detective's testimony as an improper opinion on 

### guilt. Defense counsel opened up the subject ofprobable cause for strategic
reasons. This opened the doorfor the State on cross-examination to clarifythe meaning ofprobable cause and give appropriate contextto the detective's 

### testimony elicited by defense counsel on direct examination. See State v. Gefeller, 76 Wn.2d 449, 455-56, 458 P.2d 17 (1969). This was a different and far 

### less prejudicial exploration ofthe meaning ofprobable causethan what occurred in State v. Stith, 71 Wn. App. 14, 22-23, 856 P.2d 415 (1993), a case Thomas 

### has submitted as supplemental authority. There, defense counsel made an 

### argument suggesting that police officers had fabricated theirtestimony, and the prosecutor responded by arguing that "'the question ofprobable cause is something thejudge has already determined beforethe case came before you today.'" Stith, 71 Wn. App. at 17. Here, the officer merely gave straightforward
answers to questions about police procedure. Also cited by Thomas as supplemental authority is State v. Jones, 144 

### Wn. App. 284, 183 P.3d 307 (2008). There, the court stated that prosecutorialNo. 69835-4-1/6
misconduct would not be excused on the theory that defense counsel had opened the doorto it. Jones, 144 Wn. App. at 295. Thomas argues that here, as inJones, the State is improperly exploiting the "open door" rule. We disagree. What occurred here is not comparable to what happened in Jones. InJones, defense counsel cross-examined an officer and elicited his testimony thatthe confidential informant had dropped out of sight. The State "seized the 

### opportunity" to elicit "inadmissible and inflammatory hearsay evidence"—the officer's testimony thatthe informantwas too frightened to testify even though he had previously appeared excited to do so. Jones, 144Wn. App. at 295. Here, unlike inJones, the prosecutor's questions to the detective were 

### withinthe scope ofthe colloquy between defense counsel and the detective, and the answers were not inflammatory. We rejectThomas' argumentthatthe 

### prosecutor had a duty to objectwhen defense counsel introduced the irrelevant topic ofprobable cause. As the State points out, raising an objection carries the riskthatthejurywill believe the objecting party is trying to hide something. In 

### light of the curative remarks made bythe trialjudge, there is no reason to believe thejurywas misled into thinkingthatthe detective's belief inprobable cause satisfied the State's burden of proof. 

### Presenting testimony about probable cause is indeed an irregularity, and the trial court rightlychastised both counsel fortheir respective parts in it. Nevertheless, when viewed againstthe backdrop of allthe evidence, the 

### irregularity did not so prejudice thejury as to deny Thomas his right to a fair trial.No. 69835-4-1/7
Gun Testimony Thomas again moved for a mistrial, unsuccessfully, when Jennings testified thatThomas "had a gun," despite a pretrial ruling barring evidence that Thomas had or displayed a gun atthe club on the night in question. Thomas argues on appeal that the reference to a gun was a serious irregularity that demanded a mistrial ruling. On direct examination, the prosecutor asked Jennings how he reacted when he found Heller at the club with obvious injuries after her encounterwith 

### Thomas. Jennings responded that he wanted to "jump on him," butthen he remembered thatThomas "had a gun": 

### Q. So what did you do, what did you do when you sawthis? A.
... Ididn't know what happened to her. Irun to the back back there, atthe back door. Mr. Thomas was still standing there in the back back there, and Irun backthere because Iwas going to 

### jump on him. ButIremembered he had a gun, so Ifigured that's what he hit herwith was the gun. 

### Defense counsel immediately objected. The trial court sustained the objection, struckthe answer, and instructed thejurors to disregard. Once thejury was excused, defense counsel moved for a mistrial. The trial court denied the motion. 

### The question is whether, in light of allthe evidence, Jennings' testimony
so prejudiced thejurythatThomas was denied a fair trial. We conclude it did not. The fact that a person owns a gun is not necessarily prejudicial. The trial 

### court immediately struckJennings' answer and instructed thejury to disregard it. The court emphasized to thejury thatthere was no evidence thatThomasNo. 69835-4-1/8 

### possessed a gun during this incident. Heller did not mention a gun inher testimony about being punched by Thomas inthe back room. 

### Thomas relies on State v. Freeburq. 105 Wn. App. 492, 20 P.3d 984 (2001). This case is not like Freeburg. There, evidence ofthe defendant's 

### possession of a weapon atthe time ofarrestwas purposefully admitted to show flight and consciousness of guilt. No limiting instruction was given. Here, Jennings' speculation thatThomas might have had a gun with him was immediately struck from the record, and the court gave a curative instruction. The trial courtdid not abuse its discretion indenying defense counsel's motion for mistrial. Exclusion ofSpears' Testimony Thomas contends thatthe trial court improperly curtailed his right to present a defense by excluding testimony suggesting that itwas Hellerwho committed assault on the night in question. On December 18, 2012, the last day of trial testimony, Spears was on the witness stand. During a break, Spears disclosed to defense counsel that she had received text messages from Heller a day or two afterthe incident, inwhich Heller said that she herselfhad punched Thomas on the night ofthe incident,
one punch for each grandchild. Thomas wanted to use Spears' testimony about the text messages to impeach Hellerwho, in her earliertestimony, did not mention punching Thomas. The testimony was excluded because itwas disclosed late. Thomas made an offer of proof:

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### This was late-breaking evidence.... Myunderstanding
... is that Ms. Spears received a text message from hermother a day or two after the incident itself. She would have testified that Ms. Heller was calm in the beginning and then she became more and more upset, her behavior escalated, and then she would come in and say—and then she got loud. And then she would have testified that with every punch she said this is for [J.S.], the punch against Mr. Thomas, this is for [W.R.], this is for [J.M.], and this was out of Ms. Heller's own mouth. Itwould be ofcourse impeachmentevidence. I want to make sure I cover it all.

. . . the court barred me from bringing that evidence out. Under both the United States and Washington Constitutions, an accused has the right to a meaningful opportunity to present a complete defense. U.S. Const, amends. 6, 14; Wash. Const, art. I, § 22. These provisions require that
an accused receive the opportunity to present his version ofthe facts to thejury. State v. Jones. 168 Wn.2d 713, 720-21, 230 P.3d 576 (2010). This case is not like Jones or State v. Maupin. 128 Wn.2d 918, 913 P.2d 

### 808 (1996), where the trial courts excluded the only evidence ofthe defendants' defense theories and in each case the evidence had high probative value. Here, anotherwitness had already testified that he heard Heller admitto attacking Thomas when Thomas received a phone call from Heller, which he put on speakerphone. And Spears' testimony that Heller's text messages admitted punching Thomas would have only impeached Heller's testimony that she did not hitThomas. Because itwould not have impeached hertestimony thatThomas hit her, ithad low probative value for the defense. Thomas fails to establish that the exclusion ofthe last-minute testimony deprived him ofthe opportunity to offer
a meaningful defense.No. 69835-4-1/10
Admission ofPhotographs 

### Thomas argues thatthe court abused its discretion by admitting prejudicial 

### photographs of Heller. Our review is for an abuse ofdiscretion. State v. Crenshaw. 98 Wn.2d 789, 806, 659 P.2d 488 (1983). 

### Accurate photographic representations are admissible, even ifgruesome, iftheir probative value outweighs their prejudicial effect. Crenshaw. 98 Wn.2d at 

### 806. The eight photos of Hellerthatwere admitted were taken while she was lying in a hospital bed. They showfacial swelling, two breaks to her nose, bleeding from her nose, and black eyes. Thomas defended inpart on the theory that Heller sustained the injuries 

### when she fellafter attacking him. Heller has epilepsy, and Thomas suggested 

### she might have been having an epileptic seizure. The photos tended to refute Thomas' theory and to support, instead, the State's assertion that the injuries
were caused byThomas punching Hellerrepeatedly intheface. We find no abuse ofdiscretion. Selection ofAlternate Jurors 

### Thomas contends thatthe court violated his right to a public trial by 

### conducting the selection ofalternatejurorsin a manner that was not open to the public. On December 19, 2012, before instructions were given to thejury and 

### closing arguments were presented, the trial courtconducted a process for deciding which two jurors would be designated as alternates. The record contains the following description ofthe process:

10No. 69835-4-1/11 (JURY NOT PRESENT INTHE COURTROOM.) THE COURT: We're going on the record. We made it on the record. Wejust did a random selection of little pieces ofpaper and the defense picked Juror No. 3 as the first alternate and the State picked Juror No. 4 as the second alternate. So they'll be dismissed with instructions at the end ofclosing. There's only one 

### time I'veever had to call back an alternate, but you neverknow.[1] A defendant's right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution and article I, section 22 ofthe Washington Constitution. State v. Strode. 167 Wn.2d 222, 225, 217 P.3d 310 (2009). To 

### protectthe defendant's right to a public trial, a trial court must analyze and weigh five factors before closing a portion of a criminal trial. State v. Bone-Club. 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). Thomas contends the record shows 

### that "the drawing ofalternatejurors was done during a court recess offthe record without a Bone-Club inquiry," thus establishing a court closure which requires that his conviction be reversed and remanded for a new trial. Thomas relies on State v. Jones. 175 Wn. App. 87, 303 P.3d 1084 (2013). In Jones, the court indicated at the close ofevidence that a court clerk would 

### randomly draw names of fourjurors from a rotating cylinderto determine which jurors would be alternatives. There was a court recess during the defense closing arguments. The drawing occurred during the recess. The Jones court concluded thatthe procedure did not occur inopen court and thatthe off-the1Report ofProceedings (Dec. 19, 2012) at 3.

11No. 69835-4-1/12
record selection by the court clerk lacked safeguards against manipulation and chicanery: Although we do not suggestthat the alternatejurordrawing inthis case was anything but random—and Jones does not appear to argue otherwise—there is simply no way to tell how the drawing was performed. The issue is not thatthe drawing inthis case was a result ofmanipulation or chicanery on the part ofthe court staff memberwho performed the task, butthatthe drawing could have been. Where such a drawing occurs during a court recess offthe record, the defendant and the public lackthe assurance of a truly random drawing thatthey would have ifthe drawing were performed in open court on the record. This lack ofassurance raises serious questions regarding the overall fairness ofthe trial and indicates that court personnel should be reminded ofthe importance oftheir duties. Accordingly, we conclude that considerations of logic "implicate the core values the public trial 

### right serves." fState v. lSublett. 176Wn.2d [58,] 72[, 292 P.3d 715 (2012)]. Jones. 175 Wn. App. at 102. The court concluded that the defendantwas entitled to a new trial. Here, unlike in Jones where the court clerk selected the alternates, the record reflects that the random selection was done by the parties' attorneys 

### underthe supervision ofthejudge. Although thejury was not present, the record 

### provides no basis to believe thatthe drawing ofnames did not occurin an open courtroom where itcould be witnessed by the public. Participation by counsel is


### an additional safeguard against manipulation and chicanery. We concludethat
no closure occurred, a Bone-Club analysis was not required, and Thomas is not entitled to a new trial. Affirmed.

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WE CONCUR: 

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