                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         April 21, 2020




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 52585-2-II

                                Respondent,

          v.

    LARRY AYO PETERS, JR.,                                    UNPUBLISHED OPINION

                                Appellant.

         CRUSER, J. — Larry Ayo Peters Jr. appeals from his jury trial convictions for first degree

kidnapping, felony harassment, and second degree assault of his former girlfriend, MT, and the

deadly weapon sentencing enhancements related to each conviction. He argues that (1) the State’s

late disclosure of impeachment evidence amounted to a Brady1 violation that violated his right to

a fair trial and (2) the deadly weapon sentencing enhancements violated his right to a unanimous

verdict because the jury was not instructed that it had to be unanimous as to which weapon he was

armed with when it made the deadly weapon special verdict findings. Because Peters fails to show

that the late-disclosed evidence was material and the State elected in closing argument what




1
    Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
No. 52585-2-II


weapon it was relying on to prove the deadly weapon sentencing enhancements, we affirm the

conviction and deadly weapon sentencing enhancements.

                                              FACTS

                                        I. BACKGROUND

       On January 12, 2017, at about 12:30       PM,   officers from the Fife Police Department

responded to a 911 call from MT. MT reported that Peters had lured her to a motel room the night

before with a false text message that she thought came from a friend and had attacked her. She

told the responding officers that Peters had shocked her with a “stun gun” in the side of her neck

and stomach, sexually assaulted her, and threatened to kill her. 5 Verbatim Report of Proceedings

(VRP) at 462.

       Officers located Peters at the motel. When the officers took Peters into custody, they found

and confiscated two cell phones.      Peters was transported to the hospital because he was

experiencing health issues.

       At the hospital, Detective Sergeant Thomas Thompson and Detective Jeff Nolta

interviewed Peters. Nolta later downloaded information from the two cell phones and produced

reports about their contents, which include text messages to and from MT.

                                         II. PROCEDURE

A. CHARGES

       The State charged Peters by amended information with first degree kidnapping, first degree

rape, felony harassment, second degree assault, and violation of a domestic violence court order.

The State also alleged that Peters committed each of these offenses while armed with a deadly

weapon. The case proceeded to a jury trial.


                                                2
No. 52585-2-II


B. TRIAL

       Nolta, Thompson, Captain Aaron Gardner, MT, and the sexual assault nurse examiner

testified for the State. Peters did not present any evidence.

       1.      TESTIMONY

               a.      NOLTA’S TESTIMONY

       Nolta testified about his and Thompson’s interview with Peters in the hospital. Nolta also

testified about his forensic examination of the two cell phones that Peters had been carrying.

               b.      THOMPSON’S TESTIMONY

       Thompson testified about contacting MT at about 12:30        PM   following her 911 call on

January 12. When he arrived, MT described what had happened; her description was largely the

same as her trial testimony. Thompson observed that MT had injuries to her neck and stomach.

       After MT was taken to the hospital, Thompson went to the motel, where other officers were

taking Peters into custody. Thompson’s testimony about what happened at the hospital was the

same as Nolta’s, but Thompson provided more detail about the interview.

               c.      GARDNER’S TESTIMONY

       Gardner testified that he contacted Peters by phone at the motel and asked him to step out

of the room to talk to the officers outside of his room. Peters eventually left the room and was

arrested.

               d.      MT’S TESTIMONY

       MT testified that Peters lured her to the motel room by sending her a text purporting to be

from another friend and inviting her to the motel on the evening of January 11. When she arrived,

she was attacked by a person wearing black clothing and a black mask, whom she later recognized


                                                  3
No. 52585-2-II


as Peters. Peters shocked her with a stun gun to the side of her neck, and she fell to the floor.

Peters then used the stun gun on her stomach.

       MT testified that Peters took away her cell phone and then told her that he wanted to have

sex with her “one last time” and ordered her to remove her clothing. 1 VRP (Mar. 12, 2018) at

119. Peters threatened to kill her and then himself and swung a machete within inches of her head.

MT complied with Peters’s demands because she feared for her life and thought Peters would kill

her with the machete if she did not comply. After having sex, Peters fell asleep, but MT did not

attempt to escape because she feared she would wake him and make him angry. MT eventually

managed to escape and contact law enforcement.

               e.      FORENSIC NURSE EXAMINER’S TESTIMONY

       Tasha Cushman, the forensic nurse examiner who examined MT, testified that MT told her

(Cushman) that she (MT) had cooperated with Peters because she was afraid for her life and

thought that if she cooperated she might be able to try to escape. MT described being stunned,

and Cushman saw stun gun marks on the left side of MT’s neck and abdomen. MT also described

other weapons, such as a machete, “a big long sword thing,” and “zip tied handcuffs.” 6 VRP at

594. MT further reported that Peters had threatened to kill her and then himself and to kill her if

she reported the incident.

       2.      JURY INSTRUCTIONS

       After the parties rested, the trial court instructed the jury on the substantive offenses and

the deadly weapon sentencing enhancement special verdict forms. The trial court did not instruct

the jury that it had to be unanimous as to which weapon was the basis of any deadly weapon

sentencing enhancement special verdict, nor did Peters request such an instruction.


                                                4
No. 52585-2-II


          3.      CLOSING ARGUMENTS AND VERDICT

          During its closing argument, the State discussed the deadly weapon sentencing

enhancement special verdicts. The State argued that the deadly weapon sentencing enhancement

special verdicts were based solely on Peters having been armed with the machete.2

          The jury found Peters guilty of first degree kidnapping, harassment, and second degree

assault.3 It also found that Peters was armed with a deadly weapon when he committed each of

these offenses.

C. MOTION TO DISMISS

          After the verdict, but before sentencing, Peters moved to dismiss the charges under CrR

8.3(b), based on governmental misconduct. Peters alleged that the State had violated Brady by

failing to disclose potential impeachment evidence related to Nolta that had existed prior to Nolta’s

March 12 testimony.

          Peters stated that on May 15, well after Nolta testified, the State disclosed a February 20,

2018 disciplinary report concluding that in a different case Nolta had “committed a series of acts

which had potential impeachment value to the defendant in this case.” Clerk’s Papers (CP) at 226.

Peters alleged that the report disclosed that Nolta had been “found to have improperly accessed

and reviewed jail phone calls made by a defendant [in another case], without a legitimate

investigative purpose, in violation of [Fife Police] Department rules.” Id. Peters further alleged

that “Nolta also listened to at least one privileged phone call between a defendant [in another case]


2
    We describe and discuss this part of the State’s closing argument in more detail in the analysis.
3
  The jury also found Peters guilty of violation of a no-contact order, but the trial court later vacated
that conviction and dismissed the charge. The jury acquitted Peters on the first degree rape charge.


                                                   5
No. 52585-2-II


and an attorney’s office without disclosing that he had done so,” that Nolta had “allowed others to

use his secure login and, in the past, had listened to privileged attorney client phone calls in other

cases.” Id. Peters asserted that Gardner, who had also testified at trial, signed the disciplinary

report and that Thompson was involved in the investigation. The trial court denied the motion to

dismiss.

       Peters appeals his convictions and the deadly weapon sentencing enhancements.

                                            ANALYSIS

       Peters argues that (1) he is entitled to a new trial because the State’s failure to disclose

Detective Nolta’s disciplinary action was a Brady violation that deprived him of a fair trial and (2)

we should reverse the deadly weapon enhancements because the trial court failed to instruct the

jury that its verdict on the special verdicts had to be unanimous as to which weapon Peters was

armed with at the time of each offense. These arguments fail.

                                          I. BRADY ISSUE

       Peters argues that the State’s failure to disclose Nolta’s disciplinary action was a Brady

violation and that this violation undermines confidence in the verdict and deprived him of a fair

trial.4 We disagree.

       To establish a Brady violation, a defendant must demonstrate the existence of each of three

elements: “(1) ‘[t]he evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching,’ (2) ‘th[e] evidence must have been suppressed by the



4
  Peters does not argue that the trial court erred when it denied his CrR 8.3(b) motion to dismiss
for governmental misconduct. He argues that the Brady violation undermines only confidence in
the verdict and deprived him of a fair trial.


                                                  6
No. 52585-2-II


State, either willfully or inadvertently,’ and (3) the evidence must be material.” State v. Davila,

184 Wn.2d 55, 69, 357 P.3d 636 (2015) (alterations in original) (quoting Strickler v. Greene, 527

U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)).

       “Evidence is material under Brady ‘if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different.’”

Id. at 73 (internal quotation marks omitted) (quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115

S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). A reasonable probability exists if the suppression of the

evidence “‘undermines confidence in the outcome of the trial.’” Id. (internal quotation marks

omitted) (quoting Kyles, 514 U.S. at 434). Whether the evidence in question is material is a legal

issue that we review de novo. Id. at 74-75. The undisclosed evidence here was not material

because there is no reasonable probability that the result of the proceeding would have been

different if this information had been timely disclosed.

       As to Nolta’s testimony about his contact with Peters and Peters’s statements while at the

hospital, that testimony was merely cumulative because Detective Sergeant Thompson testified to

the same facts. Because this same evidence was presented by a second witness whose credibility

was not implicated by the late-disclosed evidence,5 we hold that the late-disclosed evidence does

not undermine confidence in the verdict in this respect.




5
  Peters appears to suggest that the late disclosure about the investigation was also a Brady
violation with respect to Thompson and Captain Gardner because they were involved in the
investigation of Nolta. But Peters does not explain how mere involvement in an investigation of
another officer provided any exculpatory or impeachment evidence. Accordingly, there is no
Brady violation in respect to Thompson or Gardner.


                                                 7
No. 52585-2-II


       As to Nolta’s testimony about the cell phone data, defense counsel used that information

in closing argument to raise issues about MT’s credibility. Because Peters himself used this

testimony to support his closing argument, Peters does not show how impeaching the source of

that evidence would have changed the result of the proceeding.

       Because Nolta’s evidence was either cumulative or was helpful to Peters, we hold that

Peters does not show materiality. Thus, his Brady claim fails.

                        II. DEADLY WEAPON SENTENCING ENHANCEMENTS

       Peters next argues that we should reverse the deadly weapon sentencing enhancements for

each offense because the trial court did not instruct the jury that it had to be unanimous as to which

weapon, the stun gun or the machete, was the basis for the enhancements. He contends that this is

a multiple acts issue and that the State’s attempts to elect were ambiguous.

       Article I, section 21 of the Washington State Constitution gives criminal defendants the

right to a unanimous jury verdict. State v. Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017).

When the State presents evidence of multiple acts that could form the basis of the crime charged,

either the State must elect to rely on just one of the acts or the jury must be instructed to reach a

unanimous verdict based on the specific act that supports a finding of guilt. State v. Coleman, 159

Wn.2d 509, 511, 150 P.3d 1126 (2007). Here, even presuming, but not deciding, that the unanimity

rule applies to deadly weapon sentencing enhancements, there was no unanimity issue because the

State clearly elected the type of weapon used in relation to each of the special verdicts.

       When addressing the special verdict for the deadly weapon sentencing enhancement for

the first degree kidnapping charge, the State argued,

       That room was not a big room. It was a standard two-queen room in any motel
       we’ve ever been in, and you can see it. You can see those pictures, and she told

                                                  8
No. 52585-2-II


          you where they were arrayed. The machete at one point was over by the chair,
          which was between the two beds. She told you the other items were all laid out for
          him on that table or desk thing that was underneath the TV. They were very much
          available to him, and that room was not a giant room. There wasn’t a ton of walking
          space in there, so yeah, they’re readily accessible to him for offensive or defensive,
          if she decided to fight back. He had pepper spray, he had gel spray, he had plenty
          of things to utilize, right?
                  But really the question -- I should clarify. The Special Verdict Form is with
          regard to the machete, so whether the machete was readily accessible, okay.
          Perhaps also the [stun gun], but I think more -- you’re on firmer ground, I would
          submit and ask you to rely on the machete, okay.
                  ....
                  . . . There was a connection between the machete and the defendant, and he
          rented the room, right? It’s his room. It was in his room. There’s a connection.
          And there was a connection between the weapon and the crime. Was there a
          connection between this machete and the kidnapping? Yeah. One of the reasons
          she was restrained in the room, one of the reasons she didn’t flee when that door
          was opened is because she was afraid she was going to die. One of the reasons, one
          of the ways he kept her under his control that night was with this machete. So yes,
          there was a connection between the machete and the crime.

7 VRP at 682-83.

          Although the State mentioned other weapons, this argument clearly directed the jury to

consider only the machete as the basis for the deadly weapon enhancement for the kidnapping

charge.

          When addressing the special verdict for the deadly weapon sentencing enhancement on

the felony harassment charge, the State argued, “Was he armed with a deadly weapon? Again,

this pertains to Instruction 34[6] regarding the machete. Yes, he was physically holding it while

he threatened to murder her.” Id. at 692. As Peters himself concedes, this was a clear election of




6
 Jury instruction 34 instructed the jury on the deadly weapon special verdict and defined the term
deadly weapon for this purpose. The State was distinguishing this definition of deadly from the
definition of deadly weapon that applied to the substantive offenses, jury instruction 16.


                                                    9
No. 52585-2-II


the machete as the only basis for the deadly weapon enhancement for the felony harassment

charge.

          When addressing the special verdict for the deadly weapon sentencing enhancement on the

second degree assault charge, the State argued,

                  And was he armed with a deadly weapon at the time? Remember, this
          regarding the machete, so the question is, so you may -- I don’t think you should,
          but you may determine that when he [stunned] her at the door, that the [stun gun]
          was a deadly weapon, but he was not armed with the machete, in which case you
          could return a guilty on [the verdict form for the crime of second degree assault]
          and answer [the deadly weapon special verdict for related to the second degree
          assault charge] as a no. But remember what Instruction 34 tells us about “armed.”
          Armed means readily available. It doesn’t mean in his hand. And what did we
          have? We had a room where he had staged it and set it up, weaponry laid out, and
          the machete was near enough that he was dragging her to it. So I would submit to
          you, yes, you find, yes, he was armed with a deadly weapon, with the machete at
          the time.

Id. at 696-97.

          The State’s argument clearly distinguished between what weapon the jury was to consider

when considering the offense from the weapon it was to consider when considering the deadly

weapon special verdict. In fact, the State went as far as to remind the jury that it must answer “no”

to the deadly weapon special verdict if it was relying on the stun gun.

          This argument, as a whole, clearly demonstrates that the State elected to rely upon the

machete as the deadly weapon in relation to each of the charges, not the stun gun or the other

weapons in the room. Because the State clearly elected to rely on the machete, Peters’s unanimity

argument fails.7



7
  Because we hold that the State elected by asking the jury to consider only whether Peters was
armed with the machete, we do not address Peters’s assertion that the evidence was insufficient to
establish that the stun gun was a deadly weapon for purposes of the sentencing enhancement.
                                                  10
No. 52585-2-II


        We hold that (1) Peters’s Brady argument fails because Peters does not establish materiality

and (2) Peters’s unanimity argument fails because the State clearly elected which weapon it was

relying on for the deadly weapons sentencing enhancement verdicts during closing argument.

Accordingly, we affirm the convictions and the deadly weapon sentencing enhancements.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     CRUSER, J.
 We concur:



 MAXA, P.J.




 GLASGOW, J.




                                                11
