Opinion
No. 48727-2-I
Filed: June 9, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 00-1-03051-3 Judgment or order under review Date filed: 06/22/2001
Counsel for Appellant(s), Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Andrea Ruth Vitalich, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Undrell Hoyle was convicted of first degree rape and first degree burglary and sentenced to life in prison without the possibility of parole under both the two-strikes and the three-strikes provisions of the Persistent Offender Accountability Act (POAA). On appeal, he argues that (1) the failure of the police to collect and immediately disclose the existence of evidence found at the crime scene violated his right to due process, (2) juror misconduct violated his right to a fair trial, (3) the admission of the victim's statements as excited utterances violated his right to due process, and (4) the trial court erred by sentencing him to life in prison as a persistent offender. In a pro se supplemental brief, Hoyle challenges the fact that the State amended the information. We affirm Hoyle's conviction, vacate his sentence under the two-strikes law, and remand for further proceedings with respect to his sentence under the three-strikes law.
FACTS
On March 24, 2000, Marilyn Marshall walked to a grocery store about a half block from her apartment. On the way home, she noticed a person following her, whom she recognized as a friend of her friend, Samuel Brown. This person was the appellant, Hoyle. Hoyle had been to Marshall's apartment several times before to smoke crack cocaine with Brown.
When Marshall entered the locked front door of her apartment building, Hoyle followed her inside and into the elevator. When Marshall unlocked and opened the door to her apartment, Hoyle forced his way into the apartment. Hoyle closed the door, locked it, and pushed Marshall into the bedroom, telling her not to say anything. When they were in the bedroom, Hoyle told Marshall to take off her clothes and get on the bed. He tore a pillow case into pieces and used the pieces to tie her hands behind her back and tie her ankles together. Hoyle kept telling Marshall to stay quiet and not say anything. Hoyle then took a cable television wire and tied it around Marshall's neck, wrists, and ankles, and then to the bedpost. Hoyle undressed, went into the bathroom, got some hand lotion, and rubbed it on himself. He put his finger in Marshall's vagina and forced her to perform oral sex. Hoyle then went to the kitchen and returned with two knives. He ran one knife over Marshall's body, telling her again to be quiet and not say anything. He did this for more than five minutes, and when he stopped, he sat in a chair and looked at Marshall.
Marshall heard someone knocking loudly at the door and calling her name. Marshall recognized the voices of the manager of the building and her daughter, Sherri Weatherspoon, who was visiting from Virginia. Marshall yelled for help. Hoyle used one of the knives to cut the cords and bindings around her wrists and ankles. Hoyle cut Marshall on the ankle while he was doing this.
The cut required eight to ten stitches.
Hoyle put his clothes on and left the apartment. Meanwhile, Weatherspoon borrowed the cell phone of her friend, Tara King, who was with Weatherspoon and the apartment manager and went outside to call 911.
When King saw Marshall, naked and bleeding, emerge from the bedroom, she ran downstairs and yelled to Weatherspoon that Hoyle, who was running down the stairs, had cut Marshall.
Weatherspoon jumped on Hoyle, punched him in the head, and asked him what he did to her mother. Hoyle ran away, and Weatherspoon and King chased him. King stopped chasing Hoyle after a block or so. Weatherspoon kept chasing him, and, while running, she called 911 again from the cell phone. The dispatcher told her to stop chasing Hoyle and stay in one spot so a patrol car could find her and pick her up.
A patrol car arrived and took Weatherspoon two or three blocks away, where other officers had detained Hoyle. After Weatherspoon identified Hoyle, the officers then took her back to Marshall's apartment. Fire department personnel treated Marshall, and she was then taken to Harborview.
The three detectives who investigated Marshall's apartment saw fabric, cable cords, two knives, and blood in the bedroom. At the end of their search of the bedroom, one of the detectives lifted up Marshall's mattress. He saw a glass pipe, commonly used to smoke rock cocaine and marijuana, under the mattress. When he discovered the pipe, the detective said "Oh, no." The pipe looked fairly new and did not appear to have ever been used. Because the pipe did not appear to have been used and because there was no indication that it was involved in the sexual assault, the detectives decided to return it to where they found it under the mattress.
RP 4/2/01 at 56.
One of the detectives testified that they concluded that the pipe under the mattress could not have been involved in the crime because not only was Marshall lying on top of the mattress, but she was also tied down.
The detectives did not include anything about the pipe in the police report.
In October 2000, before trial, the prosecutor told one of the detectives that Hoyle was planning to argue that he and Marshall had been engaged in a "sex for drugs" transaction. Upon hearing this, the detective recalled the pipe that was found under Marshall's mattress. He talked to the other detectives involved, and then talked to the prosecutor and wrote a statement about the discovery of the pipe. This information was provided to defense counsel. Hoyle moved to dismiss the charges against him on the ground that he was denied due process by the detectives' failure to collect the pipe. The trial court held a hearing on the motion and heard testimony from the detectives and prosecuting attorneys about discovery of the pipe and how and when the detectives notified them about it. After considering the testimony and the arguments of counsel, the trial court denied the motion to dismiss.
Hoyle was charged with first degree rape and first degree burglary with sexual motivation. After the trial, the jury found him guilty as charged. The trial court found that Hoyle was a persistent offender under both the three-strikes law and the two-strikes law for sex offenders. The court sentenced Hoyle to life in prison without the possibility of parole. Hoyle appealed his conviction and sentence. After filing the notice of appeal, Hoyle filed a motion for a new trial, alleging juror misconduct.
The trial court denied his motion. Hoyle appealed this decision as well, and the two appeals were consolidated.
DISCUSSION
Failure to Collect Evidence
Hoyle argues that he was denied due process because the detectives did not collect and immediately disclose the existence of the glass pipe they found under Marshall's mattress. The analysis of this issue depends on whether the pipe is material exculpatory evidence or potentially useful evidence.
If the State failed to preserve material exculpatory evidence, the charges against Hoyle must be dismissed. But, in order to be "material exculpatory evidence," it is not enough that the evidence might have exonerated Hoyle. Rather, [i]n order to be considered 'material exculpatory evidence', the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994).
Id. (citing California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)).
The good or bad faith of the State is irrelevant when it fails to disclose material exculpatory evidence.
State v. Copeland, 130 Wn.2d 244, 280, 922 P.2d 1304 (1996) (citing Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)).
With respect to evidence that is only "potentially useful," however, the failure to preserve it "does not constitute a denial of due process unless a criminal defendant can show bad faith on the part of the State."
Wittenbarger, 124 Wn.2d at 477 (citing Youngblood, 488 U.S. at 58).
In his pretrial motion to dismiss, Hoyle argued that the pipe was material exculpatory evidence because DNA tests could have been performed on it and could have shown that both Hoyle and Marshall used it. He also argued that the pipe was material because it could have been used to attack Marshall's credibility and motives. On appeal, Hoyle concedes that the pipe is not material exculpatory evidence. He now argues that it is potentially useful evidence and that the State acted in bad faith in failing to preserve it.
The trial court found that Hoyle failed to establish bad faith on the part of the State. There is substantial evidence to support the trial court's finding, and we therefore affirm. At the time the officers were investigating Marshall's apartment, they had no knowledge that she was involved with drugs and had no reason to suspect that drugs might be involved in the crime. The trial court stated:
See State v. Ortiz, 119 Wn.2d 294, 302, 831 P.2d 1060 (1992). We disagree with Hoyle that de novo review is the proper standard of review.
The cases on which he relies, United States v. Cooper, 983 F.2d 928 (9th Cir. 1993), and Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989), are distinguishable. The court in Cooper did state that de novo review was the proper standard to review the trial court's determination that the government's failure to preserve potentially exculpatory evidence violated the defendant's due process rights. However, unlike this case, in Cooper, the government did not challenge the trial court's findings about the potentially exculpatory value of the evidence or the bad faith of the police, and the court was not called upon to review them. Similarly, in Miller, although the defendant raised a bad faith claim in his habeas corpus petition, the district court failed to address it. Again, the appellate court was not called upon to review findings. Here, Hoyle challenges the trial court's findings about bad faith. As in other cases, we review them only to determine whether they are supported by substantial evidence, and, if they are, we will not disturb them. See State v. Platt, 143 Wn.2d 242, 255, 19 P.3d 412 (2001); State v. Macon, 128 Wn.2d 784, 799, 911 P.2d 1004 (1996).
Certainly, the alleged victim, with the benefit of hindsight, came forth with evidence about her connection with Sam Brown. That evidence was known later, long after this incident allegedly occurred. As I stated, she recently admitted using drugs. This information, however, was obtained after the fact, and the possibility of the importance of the crack pipe only became apparent at a later point in time after more evidence concerning her connection with drugs was obtained; but this information was not known to the officers at the time or the detectives at the time.
RP 3/20/01 at 64.
The officers found no drugs or any paraphernalia in the apartment other than the pipe under the mattress. Also, the pipe was clean and appeared that it had not ever been used. When the officers learned that Hoyle planned to argue there was a "sex for drugs" transaction, they told the prosecutor about the pipe they had found and prepared a written report that was provided to defense counsel. The testimony that the detective said "oh no" when he discovered the pipe and the detective's statement that the pipe would have complicated the investigation does not negate the fact that, at the time they were investigating the crime scene, the detectives did not know, and had no reason to know, that drugs were or might be involved. As the trial court found, the detectives' disclosure of the pipe showed good faith, not bad faith:
As I stated, the lateness disclosure doesn't indicate bad faith; but, in fact, shows good faith, because when the issue was clear, and it really wasn't even that clear, but there was some indication of a possible defense relating to drugs and sex, the fact of the pipe was disclosed.
RP 3/20/01 at 63.
The late disclosure of the pipe did not deny Hoyle due process. Juror Misconduct
Hoyle moved for a new trial on the ground of juror misconduct. His argument is based on the declaration of one juror, Toshiko Mizuki, in which she states that, prior to deliberations, a prospective juror, who later became the alternate juror, raised the possibility that this was a three strikes case. Juror Mizuki also states that during deliberations, at least four jurors wanted to ask the trial judge whether the case involved Hoyle's third strike. According to Juror Mizuki, during deliberations, the group debated the three strikes issue and "most people wanted to know the defendant's history and whether the defendant had a history of forcibly compelling women to have sex with him." Finally, Juror Mizuki states that the jurors "wondered if the defendant had a history of exchanging drugs for sex and whether he had been found guilty of forcibly compelling a woman to have sex with him before."
2CP 34.
2CP 34-35.
In response, the State submitted another, later declaration from Juror Mizuki. In this declaration, she states that defense counsel altered the original declaration after she signed it and that the declaration that was submitted "is essentially a forgery." She also says that the jurors "briefly discussed" the possibility that it was a three strikes case during deliberations because Hoyle was represented by two attorneys, but denies that the issue was "debated."
CP 46.
CP 46.
The trial court determined it was not necessary to resolve the conflicts between the two declarations because the subject matter in the declarations inhered in the verdict and therefore was not grounds upon which to grant a new trial. Accordingly, the court denied Hoyle's motion for a new trial.
See RP 3/13/02 at 16 to 23.
This court reviews a trial court's order on a motion for new trial for abuse of discretion.
State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994).
The jury's consideration of novel or extrinsic evidence, which is defined as information outside the evidence admitted at trial either orally or by document, constitutes misconduct. By contrast, the jurors' thought processes cannot be used to impeach the verdict:
Id., 123 Wn.2d at 118. For example, the jury's consideration of information in a law dictionary that had not been admitted at trial or given to the jury by the court constitutes the improper consideration of extrinsic evidence. Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 750 P.2d 1257 (1988). Also, a juror commits misconduct by looking up corporate defendants on the stock exchange and telling fellow jurors that the defendants could well afford to pay damages. Lockwood v. AC S, Inc., 109 Wn.2d 235, 264-66, 744 P.2d 605 (1987) (holding, however, that the trial court's curative instruction significantly reduced the possibility that the misconduct had any prejudicial effect).
The mental processes by which individual jurors reached their respective conclusions, their motives in arriving at their verdicts, the effect the evidence may have had upon the jurors or the weight particular jurors may have given to particular evidence, or the jurors' intentions and beliefs, are all factors inhering in the jury's processes in arriving at its verdict, and, therefore, inhere in the verdict itself, and averments concerning them are inadmissible to impeach the verdict.
Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515 (1967); see also Ayers, 117 Wn.2d at 746; Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 160, 776 P.2d 676 (1989).
The alleged misconduct here does not involve the jury's consideration of extrinsic evidence. Rather, according to the declaration of Juror Mizuki, it involves speculation by the jurors about Hoyle's criminal history. The jurors' discussion of the possibility that this might have been Hoyle's third strike reflects the jurors' concerns and thought processes, not their consideration of extrinsic evidence. As such, it is not a ground for granting a new trial.
The cases Hoyle cites are distinguishable. For example, in Halverson v. Anderson, one of the jurors conveyed information to the other jurors about the income an airline pilot and a surveyor would earn. The jurors used this information to estimate the plaintiff's future lost wages.
Halverson v. Anderson, 82 Wn.2d 746, 513 P.2d 827 (1973); State v. Cummings, 31 Wn. App. 427, 642 P.2d 415 (1982); Gardner v. Malone, 60 Wn.2d 836, 376 P.2d 651 (1962).
82 Wn.2d at 746.
Because there was no evidence introduced at trial on this issue, the Court held that the jury's consideration of it constituted misconduct. Here, the jurors did not consider evidence that was not admitted at trial.
In State v. Cummings, the jurors considered facts relating to the defendant's criminal history. The defendant was charged with second degree assault. During a recess on the first day of trial, a spectator told a juror that the defendant had been imprisoned for beating his wife and that the spectator would not have been surprised if the defendant was guilty of the second degree assault charge because he was a "con" and capable of anything. Another juror stated that before the first jury vote, he heard this juror and others talking about the defendant's being in and out of jail and having a criminal record. Again, this case is distinguishable because, in the present case, the jurors did not consider extrinsic evidence, but rather merely speculated about Hoyle's criminal history.
31 Wn. App. at 327.
In Gardner v. Malone, in violation of the court's instructions, three jurors visited the scene of the accident. Also, during deliberations, the jurors discussed the fact that if they rendered a verdict in favor of the plaintiff, it would be likely that the other passengers in the car would likewise sue the defendant. The court concluded that the unauthorized view of the accident scene coupled with the jury's consideration of other possible lawsuits against the defendant constituted sufficient misconduct to grant the plaintiff's motion for a new trial. Unlike Gardner, the present case does not involve the jury's improper consideration of evidence not admitted at trial. Also, according to Juror Mizuki's second declaration, the juror only briefly speculated that this might have been a three strikes case.
60 Wn.2d at 836.
The trial court did not abuse its discretion by denying Hoyle's motion for a new trial. The matters in the juror's declarations inhered in the verdict and are not grounds upon which a court can grant a new trial. Admission of the Victim's Statements
Hoyle moved in limine to exclude testimony of Officer Enriquez (who was the first officer to respond) about Marshall's statements to him. The court denied Hoyle's motion and concluded that the statements were admissible as excited utterances under ER 803(a)(2). Hoyle argues that the admission of this evidence was error.
Hoyle asserts, citing only federal cases, that the admission of Marshall's statements to Officer Enriquez violated his right to due process. The cases on which Hoyle relies are habeas corpus cases and were analyzed under that standard of review. Hoyle only briefly mentions this argument and cites the abuse of discretion standard of review in his argument. We review this issue under the abuse of discretion standard applicable to the review of a trial court's determination regarding the admissibility of evidence. See State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001) ("The decision to admit evidence lies within the sound discretion of the trial court and should not be overturned absent a manifest abuse of discretion.").
Under ER 803(a)(2), "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not excluded by the hearsay rule. A hearsay statement qualifies as an excited utterance if: "(1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition." The court must determine "whether the statement was made while the declarant was still under the influence of the event to the extent that the statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment."
State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000).
State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046, cert. denied, 543 U.S. 964 (2001).
Only the second factor is at issue here, that is, whether the statement was made while Marshall was under the stress of excitement caused by the event or condition. The key to this factor is spontaneity. "In determining spontaneity, courts look to the amount of time that passed between the startling event and the utterance, as well as any other factors that indicate whether the witness had an opportunity to reflect on the event and fabricate a story about it." "Ideally, the statements should be made contemporaneously with or immediately after the startling event, because the opportunity for reflective thought and the danger of fabrication are minimized." The fact that statements are made in response to a question does not necessarily mean that they are not admissible as excited utterances.
State v. Chapin, 118 Wn.2d 681, 688, 826 P.2d 194 (1992).
State v. Briscoeray, 95 Wn. App. 167, 173-74, 974 P.2d 912 (1999).
State v. Davis, 141 Wn.2d at 844 (citing Chapin, 118 Wn.2d at 688)).
Woods, 143 Wn.2d at 598.
Here, Officer Enriquez arrived at Marshall's apartment six minutes after he received a call to respond to the 911 call. While it is unclear how much time elapsed between the rape and the time Weatherspoon called 911, it is undisputed that Marshall was shaking when the officer arrived. Blood was trickling from her ankle. She started to cry when the officer spoke to her, and continued crying on and off throughout the entire 15-minute period the officer questioned her. During questioning, the officer asked less stressful questions, such as questioning Marshall about how long she lived in the apartment, hoping to calm her down a bit. The trial court found that this evidence showed that Marshall's statements to the officer were spontaneous. The trial court stated:
The cases seem to support admitting statements as excited utterances even though they are the product of some questioning. In this instance we have approximately six minutes after the call an interview with the complaining witness. It is clear that she was still under the influence of the startling event and was under the stress and excitement of the event by her appearance in terms of shaking, crying, by being upset and she was actually bleeding at the time.
There is no question that the officer permitted her to calm down a little bit was his testimony, at times when he would ask questions by going to more innocuous questions relating to how long she lived there and what her name was, et cetera.
However, he did testify that this crying continued throughout the entire interview and statements that he obtained, that she was upset, that he didn't ask — well, the questions he asked were just sufficient enough to get what he called a narrative, which I believe is evidence of spontaneous answers versus answers which were the product of reflection, the ultimate linchpin being reliability.
I believe that the State has sufficiently established the foundation requirements to admit the statements under the excited utterance rule. The motion to exclude is denied.
RP 3/26/01 at 33-34.
Hoyle argues that Marshall had time to reflect and fabricate her responses to Officer Enriquez's questions. He cites State v. Brown in support of his argument. Brown is distinguishable. In that case, the victim reported that she had been abducted into the defendant's apartment, where four men raped her. At trial, she admitted that she voluntarily went to the defendant's apartment to perform sex for money. Immediately afterward, she returned to her own apartment and discussed the situation with her boyfriend. She decided to tell the police that she had been abducted because she thought the police would not believe she had been raped if she admitted to initially agreeing to perform sex. After discussing the situation with her boyfriend, the victim called 911. The Court held that the trial court erred by admitting the 911 tape as an excited utterance because the victim testified that she had the opportunity to, and did in fact, decide to fabricate part of her story prior to calling 911. Here, there was no testimony that Marshall had time to fabricate, or did fabricate, any or all of her story. The trial court's determination to admit the statements as excited utterances was not an abuse of discretion. Sentencing pursuant to the Persistent Offender Accountability Act
127 Wn.2d 749, 903 P.2d 459 (1995).
Hoyle distorts the record by saying that Marshall lied when she initially said she did not know him. As the excerpt from her cross-examination in the State's brief shows, it appears that Marshall interpreted "know" to mean more than just having met a person once or a few times before. Although Hoyle had been to Marshall's apartment prior to the day of the rape, Marshall was not acquainted with him, and, under her understanding of "know," she did not know Hoyle.
A. Comparability under the two-strikes statute
Hoyle's criminal history consists of two prior Tennessee convictions:
a 1993 conviction of attempted rape and a 1979 conviction of first degree burglary and first degree criminal sexual conduct. The trial court found these Tennessee convictions comparable to Washington sex offenses for purposes of sentencing Hoyle under both the two-strikes and three-strikes provisions of the persistent offender statute, former RCW 9.94A.030(27).
Hoyle argues that because the two-strikes law under which he was sentenced did not contain a comparability provision, but rather contained an exclusive list of Washington offenses, the trial court erred by counting the Tennessee convictions. In State v. Delgado, the Washington Supreme Court held that the two-strikes statute (former RCW 9.94A.030(27)(b)(i-ii), the same statute applicable to Hoyle) was unambiguous and contained an exclusive list of offenses that could be counted as a previous conviction for purposes of sentencing as a persistent offender. Unlike the three-strikes statute, former RCW 9.94A.030(27)(a)(i-ii), the two-strikes statute did not contain a comparability clause under which out-of-state convictions of offenses comparable to the Washington offenses listed in the statute could be used in sentencing a defendant as a persistent offender. The Court held that because the two-strikes statute unambiguously listed only certain offenses, and did not include a comparability clause, a court could not use anything but the offenses specifically enumerated as a strike. Under Delgado, the trial court here erred by using Hoyle's Tennessee convictions for purposes of sentencing him under the two-strikes law.
148 Wn.2d 723, 63 P.3d 792 (2003).
The legislature amended the two-strikes statute in 2001 to include a comparability provision. See RCW 9.94A.030(32)(b)(ii) (Laws of 2001, ch. 7, § 2).
B. Sentencing Under the Three-Strikes Law
Hoyle does not challenge the trial court's use of his 1993 conviction. He argues that the trial court erred by using his 1979 Tennessee conviction of first degree criminal sexual conduct to sentence him under the three-strikes law because this crime is comparable to a Class B felony and his conviction washed out pursuant to former RCW 9.94A.360(2) and State v. Cruz.
139 Wn.2d 186, 985 P.2d 384 (1999).
Under former RCW 9.94A.360(2), prior Class B felonies wash out and cannot be used to calculate a defendant's offender score if the defendant is not convicted of any crimes for ten consecutive years. Class A felonies, by contrast, always count in computing an offender score, no matter how much time elapses between that crime and a subsequent conviction.
At oral argument on appeal, the State argued for the first time that whether Hoyle's 1979 conviction is comparable to a Class A or a Class B felony is irrelevant because he was released on the 1979 conviction in 1991 and convicted of another offense in 1993. Thus, the State argued, even if the 1979 conviction is comparable to a Class B felony, it did not wash out because fewer than 10 years elapsed between Hoyle's conviction on this offense and his 1993 conviction. In support of this argument, the State cites to its argument at sentencing where it refers to a letter of discharge in Exhibit 2 from the Tennessee State Prison and argues "they buy him a bus ticket back to Memphis, and he gets release to 1991, and he is sent right back to Memphis where the subsequent event happened in 1993." There is no other argument or reference to Hoyle's release date on the 1979 conviction, and the trial court did not make a finding on this issue. The record is therefore insufficient for us to determine Hoyle's release date.
RP 6/14/01 at 57.
The record is likewise insufficient to determine whether the crime Hoyle was convicted of in 1979 is comparable to a Class A or a Class B felony. The trial court found that Hoyle's Tennessee conviction of first degree criminal sexual conduct "is comparable to rape in the second degree and/or indecent liberties by forcible compulsion." Rape in the second degree is a Class A felony. Prior to 2001 when the statute was amended, indecent liberties by forcible compulsion was a Class B felony.
RP 6/14/01 at 90.
RCW 9A.44.100(2). The 2001 amendment made it a Class A felony.
Hoyle does not argue that the trial court erred by finding that the Tennessee conviction was comparable to second degree rape "and/or" indecent liberties by forcible compulsion. Rather, he focuses on the fact that the trial court found the conviction comparable to a Class B felony and ignores the fact that the court also found that "and/or" it was comparable to a Class A felony. Likewise, the State focuses on the fact that the trial court found the conviction comparable to a Class A felony and ignores the fact that the court also found that "and/or" it was comparable to a Class B felony.
Neither party undertakes a comparability analysis on appeal. Neither party provides a copy of the Tennessee statute under which Hoyle was convicted in 1979. Although, as is evident from reading the transcript of the sentencing hearing, the trial court had this information before it when it undertook a comparability analysis, neither party designated the documents, and they are not part of the record on appeal. There is, therefore, insufficient information to determine whether Hoyle's 1979 Tennessee conviction is comparable to a Class A or a Class B felony and whether it washed out.
The statute has been repealed, and we have been unable to locate a copy of it.
Given the insufficiency of the record regarding whether Hoyle's 1979 conviction washed out and, if not, whether it is comparable to a Class A or Class B felony, we remand for a hearing for a determination of these issues and for resentencing, if necessary.
We deny the State's motion to supplement the record with certified documents relating to Hoyle's criminal history that were admitted at sentencing as post-trial Exhibits 1, 2, 3, 4, and 5. These critical issues need to be resolved by the trial court.
C. Constitutionality of Persistent Offender Accountability Act
Hoyle raises several arguments about the constitutionality of the procedures under the POAA. He acknowledges that the Washington Supreme Court rejected these arguments in State v. Manussier and State v. Thorne, but includes the arguments in order to preserve them for further review in the state and federal system.
129 Wn.2d 652, 921 P.2d 473 (1996).
129 Wn.2d 736, 921 P.2d 473 (1996).
Hoyle argues that the federal due process clause of the Fourteenth Amendment requires that prior convictions used to increase a sentence beyond the statutory maximum term must be formally pleaded, submitted to a jury, and proved beyond a reasonable doubt. The Court rejected this argument in Manussier. Hoyle argues that subsequent decisions of the United States Supreme Court merit further consideration of this issue. This court must follow Manussier. Whether to depart from this holding in light of the United States Supreme Court decisions is an issue only the Washington Supreme Court can decide.
Hoyle also argues that the state constitution bars imposing a life sentence without the possibility of parole without a jury determination of his prior convictions beyond a reasonable doubt. In State v. Ben, the defendant raised the same argument and acknowledged that the argument is substantially the same as the argument Justice Madsen raised in her dissent in Manussier. In Ben, this court rejected the argument, reasoning as follows:
114 Wn. App. 148, 55 P.3d 1169 (2002).
The Manussier majority did not explicitly address the question whether the POAA violates the right to a jury trial under the state constitution. However, we must presume that because Justice Madsen's dissent analyzed the issue and the Manussier majority did not adopt her analysis, they rejected it. Therefore, Manussier requires us to reject Ben's arguments here.
Id., 114 Wn. App. at 150.
The same reasoning applies here. Pro Se Arguments
Hoyle filed a pro se brief in which he focuses on the fact that the State amended the information to charge alternative means of committing first degree rape. The State initially charged Hoyle with first degree rape, alleging that he used or threatened to use a deadly weapon. Over a year before trial began, the court permitted the State to amend the information and add, with respect to the first degree rape charge, that Hoyle feloniously entered Marshall's apartment building.
The State filed a brief in response to Hoyle's pro se brief in which it addresses two issues the State says Hoyle raises. One of them — whether the charges against Hoyle should be dismissed because Harborview discarded Marshall's urine sample — does not appear in Hoyle's pro se brief. The most probable explanation for this is that Hoyle filed an amended pro se brief the same day the State filed its response to his pro se brief. Apparently, Hoyle abandoned this argument in his amended brief. The State has not filed a response to the amended pro se brief.
Hoyle also refers, in the "Conclusion" section of his brief, to comments the prosecutor made during closing argument. He states, however, that the particular comments of which he complains were omitted from the verbatim report of proceedings. It is therefore not possible to review this argument.
Hoyle argues that the court erred by permitting the State to amend the information. The Criminal Rules allow the court to permit an information to be amended at any time before the verdict is rendered if substantial rights of the defendant are not prejudiced. This court reviews a trial court's decision to allow an information to be amended for abuse of discretion. The defendant bears the burden of showing that the court abused its discretion by amending the information.
CrR 2.1(d).
State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995).
Id., 108 Wn. App. at 874.
Hoyle focuses on the fact that Marshall admitted to lying to the police and during defense interviews to argue that the State should not have been permitted to amend the information. However, Marshall's admission she lied had to do with her drug use; it had nothing to do with the allegation in the amended information. Hoyle does not demonstrate that his substantial rights were prejudiced by the amendment.
Hoyle also argues that the alternative means of committing first degree rape by use of a deadly weapon or felonious entry relieved the State of its burden to prove use of a deadly weapon. The State was not relieved of its burden. Based on the evidence at trial and the instructions to the jury, the State was required to prove both alternative means. The court's instructions clearly informed the jury that there are two alternative means to commit rape in the first degree: by using or threatening to use a deadly weapon or what appeared to be a deadly weapon or by feloniously entering the building where Marshall was located.
See CP 190.
CONCLUSION
We affirm Hoyle's conviction, vacate his sentence under the two-strikes provision of the Persistent Offender Accountability Act, and remand for further proceedings consistent with this opinion with respect to his sentence under the three-strikes provision of the Act.
COX and AGID, JJ., concur.