A Kennewick nightclub manager who dropped an intoxicated patron head first onto a sidewalk claims his public trial right was violated because the jury ultimately was picked on a sheet of paper.
Even though the standard practice was done in open court, Matthew Thomas Hibbard took issue with how attorneys on both sides rejected potential jurors as they seated a 13-member panel.
The Washington Court of Appeals this week disagreed with Hibbard’s argument, saying it lacks merit and doesn’t warrant reversing the 2013 conviction.
Hibbard, 44, has already served his 12-month jail sentence for third-degree assault. He could have seen the felony charge cleared from his record if he had won the appeal.
Never miss a local story.
Benton County Prosecutor Andy Miller said he’s happy the conviction was affirmed because it was a challenging case and the victim continues to battle health problems nearly three years later.
“There aren’t very many assaults that are based on criminal negligence, especially for somebody who is in the scope of employment duties at the time,” he told the Herald.
The Superior Court verdict, which was returned after just 45 minutes, included the finding that Hibbard acted with criminal negligence by using more force than necessary while trying to keep Ben Ensign out of Jack Didley’s on the Fourth of July in 2012. Hibbard was the general manager and head of security for the former downtown club.
Ensign, then 31, had gone out with his friends for drinks after watching the fireworks show. He twice was asked to leave the club because of disruptive behavior.
Trial testimony and security video from outside the club showed Ensign was running back to the front door to go inside when Hibbard grabbed him from behind and walked him across the sidewalk. Prosecutors said Hibbard had Ensign in a chokehold.
Hibbard said he didn’t know another bouncer had scooped up Ensign’s ankles, though prosecutors questioned how Hibbard could move a few feet back on the sidewalk over 13 seconds without noticing that Ensign was not dragging. At one point, Hibbard released his grasp and backed off because he believed the combative Ensign was about to punch him.
However, the other bouncer was still holding Ensign’s feet when the top of his body fell about 41/2 to 5 feet to the ground.
Ensign was knocked unconscious, required emergency brain surgery for a fractured skull and a subdural hematoma, and spent a month on life support before moving to a rehabilitation center.
The criminal charge against Hibbard also included the aggravating circumstance that the bodily harm caused to Ensign resulted in substantial pain and considerable suffering for an extended time.
That special verdict allowed Judge Vic VanderSchoor to go above the standard range of one to three months in jail. He didn’t think prison was appropriate because Hibbard had no criminal history.
Hibbard had told the jury he never intended to hurt Ensign and was sick to his stomach when he later learned the severity of the victim’s injuries. He was ordered to serve 20 days straight time in jail, with the remaining 345 days on work release so he could continue supporting his wife and son and pay toward restitution.
In his appeal, Hibbard said VanderSchoor was improper in limiting the number of character witnesses the defense could call. Hibbard tried to show through testimony that he had a good reputation.
The appeals court determined there was no error by VanderSchoor because prosecutors never attacked Hibbard’s reputation in trial and additional testimony “would have been cumulative and unhelpful.”
Hibbard also argued that jurors should have been allowed to consider the lesser charge of fourth-degree assault, but the appellate judges said it didn’t meet the legal requirement because that instruction would have included intent — something that wasn’t at issue in the trial.
As for jury selection, Hibbard attacked the process of passing a piece of paper between the prosecutor, defense attorney and judge as the attorneys cross off potential jurors without having to give a reason for why they’re being rejected. Once the attorneys have used their allotted peremptory challenges, the judge replaces certain jurors in the jury box to reflect the chosen panel.
“Mr. Hibbard contends this procedure resulted in a private, unrecorded conference violating his right to be present at all critical stages since the record does not show he was present or able to participate in the peremptory challenges,” the appeals opinion said.
Court reporters do not transcribe that portion of jury selection. However, Herald archives show Hibbard was seated with lawyer John Jensen and active in the process.
The opinion also stated that the record shows the jury was seated in open court.
Hibbard also expressed concerns in his appeal about prosecutor and juror misconduct and ineffective assistance of counsel. The judges said it was clear Hibbard did not agree with his attorney’s trial strategy, and that there was nothing in the record to prove misconduct.