Opinion
No. 36041-1-II.
April 8, 2008.
Appeal from a judgment of the Superior Court for Pacific County, No. 06-1-00241-3, Michael J. Sullivan, J., entered March 9, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Hunt, J.
Dustin Jon Scott appeals his conviction of third degree assault, arguing that misconduct by State witnesses violated his right to a fair trial and the trial court therefore erred in denying his motion to dismiss. Because the trial court's decision not to dismiss was well within its discretion, we affirm.
FACTS
Willapa Harbor Hospital nurse Renee Clements called the police to remove Dustin Jon Scott, who refused to leave the premises after he had been treated and discharged. Clements testified that she called the police because Scott was yelling profanities and disrupting the hospital. South Bend Chief of Police David Eastham and Raymond Police Sergeant Chuck Spoor responded to the call.
Eastham testified that when he arrived at the hospital and staff had informed him of the situation, he and Spoor entered Scott's examining room and told Scott that he had to leave. Scott became agitated and resumed yelling profanities. After asking Scott to leave three times, Eastham placed his hand on Scott's shoulder to "draw some attention to what [he] was saying." Report of Proceedings (RP) (Feb. 1, 2007) at 68. Scott then lunged for Eastham's throat. After a brief struggle, Eastham and Spoor took Scott to the floor, handcuffed him, and arrested him. Scott denied that he yelled at or lunged at the officers, testifying instead that they "rush[ed]" him immediately upon entering the room and threw him to the floor. RP (Feb. 1, 2007) at 145-46.
The officers removed Scott from the hospital and transported him to the nearby jail in Eastham's patrol car. Scott again attacked Eastham in the jail elevator, kicking him in the knee. Scott testified that he had no recollection of this incident.
The State charged Scott with two counts of third degree assault. During trial, the trial court excluded witnesses pursuant to Evidence Rule 615, but permitted Eastham to remain in the courtroom. During a recess, Scott's mother, Marilyn Kaplan, overheard Eastham discuss Clements's testimony with Spoor, who had not yet testified. After both sides rested, Kaplan told the trial court what she had heard, and the court and parties then examined Kaplan outside the presence of the jury. Kaplan testified that she heard the officers discussing how they had removed Scott from the examination room at the hospital. Eastham testified that he had asked Spoor if he could remember whether Scott had left the examination room under his own power, or whether they had dragged him. Eastham said that he did not intend to influence Spoor's testimony. Spoor also testified, echoing Eastham's recollection of the conversation.
Presumably, the trial court allowed Eastham to remain in the courtroom because he qualified for an exception to Evidence Rule 615, though the record provided doesn't speak to this decision.
Scott moved to dismiss, arguing that "the integrity of the institution of the jury trial . . . ha[d] been compromised." RP (Feb. 2, 2007) at 12. The trial court denied that motion. Scott then moved to reopen the case and call Kaplan, Spoor, and Eastham to the stand, to let the jury determine whether the conversation affected their determinations of the witness' credibility. The trial court granted the motion. When the jury reconvened, Kaplan, Eastham, and Spoor all repeated their testimony about the conversation. Spoor also testified that the conversation didn't alter his eventual testimony in any way.
The jury found Scott guilty of the assault in the examination room and not guilty of the alleged assault in the jail elevator.
ANALYSIS
We review a trial court's ruling on a motion to dismiss for manifest abuse of discretion. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). Such abuse of discretion occurs when the trial court's decision "[was] manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993); State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997). A decision is based "on untenable grounds" or made "for untenable reasons" if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995). A decision is "manifestly unreasonable" if the court, despite applying the correct legal standard to the supported facts, adopts a view "that no reasonable person would take," State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990), and arrives at a decision "outside the range of acceptable choices." Rundquist, 79 Wn. App. at 793.
In support of his contention that the trial court should dismiss the charges, Scott cites State v. Granacki, 90 Wn. App. 598, 959 P.2d 667 (1998), and State v. Cory, 62 Wn.2d 371, 382 P.2d 1019 (1963). Yet in each of those cases, dismissal was appropriate because the State intruded "on a defendant's right to effective representation by intercepting privileged communications between an attorney and his client." Granacki, 90 Wn. App. at 602; Cory, 62 Wn.2d at 378. Thus, the State's misconduct affected the defendant's right to effective representation, a constitutional guarantee "`too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.'" Granacki, 90 Wn. App. at 603, (quoting Cory, 62 Wn.2d at 376). But Scott raises no claims that Eastham's misconduct affected his counsel's representation. Scott attempts to overcome this difficulty by arguing that the difference is "a difference in form, not kind. . . ." Br. of Appellant at 17. We disagree; Granacki and Cory are not controlling because they were expressly based on a specific constitutional right not violated here.
Moreover, even if we apply Granacki, it does not hold that dismissal is the only appropriate remedy for State misconduct. As the Granacki court noted, misconduct normally does not require dismissal, and even in the face of prejudice to the defendant, a lesser sanction is within the discretion of the trial court. Granacki, 90 Wn. App. at 604. In Granacki, the trial court found that the investigating detective intentionally and surreptitiously read defense counsel's notes during a trial recess, and that the detective had violated an express court order by conversing with a juror. Granacki, 90 Wn. App. at 601. Even though the Court of Appeals affirmed the trial court's decision to dismiss, it noted that the trial court would not have abused its discretion by imposing the lesser sanction of banning the detective from the courtroom and excluding his testimony. Granacki, 90 Wn. App. at 604.
The trial court's decision not to dismiss, but to allow Scott to reopen his case and present the issue to the jury was within its discretion and appropriate to the issues Scott raised. Dismissal of charges is an extraordinary remedy available only when prejudice has materially affected the defendant's right to a fair trial. Rohrich, 149 Wn.2d at 653 (quoting State v. Baker, 78 Wn.2d 327, 332-33, 474 P.2d 254 (1970)). Here, Eastham's misconduct was fully presented to the jury. Although the witnesses who testified about the conversation varied slightly in their descriptions, they agreed that it was brief and focused on Scott's removal from the hospital after his arrest, a relatively minor detail not directly related to the assault itself. And although Eastham and Spoor both testified that the conversation was not intended to and did not influence Spoor's testimony, the jury ultimately decided this issue as part of its evaluation of their credibility. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). Scott points to nothing specific in the trial court's handling of the incident that compromised his right to a fair trial. And mere speculation that he was prejudiced is insufficient to warrant dismissal. Rohrich, 149 Wn.2d at 657-58. The trial court did not err in denying Scott's motion to dismiss.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, CJ. and HUNT, J., concur.