Opinion
No. 36409-3-II.
July 2, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03207-3, Stephanie A. Arend, J., entered June 8, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Hunt, J.
David James Lewis is a resident of the Special Commitment Center (SCC) for sexually violent predators (SVPs). Subsequent to confinement at the SCC, a jury convicted him of possession of depictions of a minor engaged in sexually explicit conduct. On appeal, Lewis contends that the trial court abused its discretion by denying his motions to: (1) suppress videotapes based on an incomplete chain of custody; (2) dismiss his case due to prosecutorial mismanagement; and (3) credit him with time served at the SCC prior to sentencing. We affirm.
A violation of RCW 9.68A.070.
FACTS
I. Substantive Facts
In July 2003, the State civilly committed Lewis to the SCC. On January 11, 2006, the SCC staff noticed Ryan Moinette, a SCC resident, sitting outside of Lewis's door for a long period of time. Moinette was "looking at something very intently" in Lewis's room. 3 Report of Proceedings (RP) at 268. The staff turned on an intercom system to listen to the men's conversation. Terrell Smith, a Residential Rehabilitation Counselor (RRC), reported that Lewis made vulgar comments about young girls, including, "You can tell that she's new at this; she's still tight." 3 RP at 237. Sheri Riconoscino, another RRC, reported hearing statements such as: "somebody look at this person in a tutu," and "I would like to hit on that." 3 RP at 291-92.
SCC staff decided to search Lewis's room. Roy McIntyre, the swing shift security supervisor that day, formed a search team that included RRC Eddie Blackburn and RRC Michael Hogan. RRC Annette Rivers filmed the team's search of Lewis's room.
At trial, McIntyre testified that when he approached Lewis's room, he saw Lewis through the open doorway watching a scene of "penile-vaginal penetration" on his television. 3 RP at 176. When Lewis became aware of McIntyre's presence, he immediately turned off the television. McIntyre asked Lewis to exit the room so that he could search it. McIntyre then pressed the "play" button on the video cassette recorder (VCR). 3 RP at 177. RRC Richard Dexter, the unit supervisor that day, reported that he saw two partially undressed young girls on a beach when McIntyre pressed "play." McIntyre immediately turned off the VCR, took the Video Home System (VHS) tape out of the VCR, and handed it to Blackburn. The search team confiscated several other VHS tapes and compact discs from Lewis's room.
Lewis acknowledged that SCC staff put the VHS tape containing the pornography, along with the other confiscated media, into an evidence bin. McIntyre stated that he "believe[d]" that Blackburn placed the VHS tape into a white evidence bin, which SCC staff typically used to confiscate contraband. 3 RP at 179. On cross examination, McIntyre admitted that he lacked personal knowledge about whether Blackburn did so, stating, "[T]hat's standard operating procedure of chain of evidence." 3 RP at 217. Hogan, the other search team member, described the standard operating procedure in a similar manner: "[A]fter we've confiscated all the items, we put it in the box and then from there, if the box was escorted to a locker, and then we do paperwork." 4 RP at 386. Hogan stated that he, McIntyre, and Blackburn witnessed the items being placed into the locker. Angela Tate, the swing shift manager on duty at the time of the search, provided similar testimony about the standard operating procedure. Also, she stated that she placed the evidence bin with the confiscated material into an evidence locker located in the staff office and locked it. Only Darold Weeks, the SCC's chief investigator, had keys to the evidence lockers in the staff office.
Blackburn no longer works at the SCC, and the State did not call him as a witness to inquire about his handling of the VHS tape.
Early the next morning, Weeks removed the evidence bin from the staff office locker and placed it in a more secure storage locker, to which only he had access. A week or two later, Weeks made a copy of the VHS tape containing the child pornography and gave it to Pierce County Sheriff's Department Detective Mike Portmann. Detective Portmann placed the VHS tape into an evidence bag and submitted it to the department's property room.
Subsequently, Detective Robert Jackson, who took over the criminal investigation from Detective Portmann and checked out the VHS tape on three occasions. Nobody else checked out the tape from the property room before trial. Detective Jackson kept the VHS tape in a locked office whenever he checked it out.
Weeks stated that the original VHS tape remained in the secure SCC locker after Weeks placed it there on January 12, 2006. Weeks removed it from the locker on the Friday before he was scheduled to testify in court, and kept it locked in his gun safe over the weekend until he brought it to court on Monday morning.
Lewis testified at trial that he had originally recorded four movies on the VHS tape (Exhibit 5-A). Lewis stated that he loaned the VHS tape to another resident who then recorded the child pornography on the VHS tape, without Lewis's knowledge. Lewis testified that when he got the tape back and discovered the pornography, he showed it to Moinette and asked him what to do. Moinette suggested that Lewis record over the material. Lewis testified that he "rewound [the tape] all the way" and began to record television commercials. 5 RP at 715. Lewis claimed that he was in the process of recording over the pornography when McIntyre initiated the search.
II. Procedural and Evidentiary Facts
On July 14, 2006, the State charged Lewis with one count of possession of depictions of a minor engaged in sexually explicit conduct. The trial court arraigned Lewis and released him on his own recognizance. Lewis spent most of the time before and during trial at the SCC.
During trial, it became clear that the child pornography tape that had been marked Exhibit 2-A was not the original videotape found during the search of Lewis's room. Weeks brought the original videotape to court when he testified on the fourth day of trial. The original videotape was marked as Exhibit 5-A. The trial court admitted the original VHS tape (Exhibit 5-A), a copy of the original VHS tape (Exhibit 2-A), and the VHS tape of the room search (Exhibit 3) into evidence.
The original VHS tape was labeled "1. Michael, 2. As Good as it Gets, 3. Mrs. Doubtfire and 4. Reckless." See Ex. 5-A. The VHS tape copy was labeled with a case number, the name of "David Lewis," and the word "copy." See Exhibit 2-A; 3 RP at 202-03. Detective Jackson testified that the pornographic content of Exhibit 5-A and its copy, Exhibit 2-A, was the same except that the original tape had a "brief clip of pornography" that "didn't get caught" when Weeks made a copy of the original. 4 RP at 554. The original tape, Exhibit 5-A, contained the "brief clip of pornography" which was followed by commercial programming. This followed by more pornographic images, which was then followed by more commercial programming. After discovering the discrepancy, the State offered to "remedy the situation by not showing the jury that initial clip." 3 RP at 478. The defense objected, stating that the fact of when "[Lewis] started recording or how he started recording [was] significant." 3 RP at 478.
Lewis moved (1) to suppress the VHS tapes due to a faulty chain of custody; (2) to dismiss for prosecutorial mismanagement under CrR 8.3(b) because the State (a) left the original VHS tape in the SCC's custody prior to trial, and (b) did not notify the defense that Exhibit 2-A was a copy; and (3) to dismiss for CrR 4.7 discovery violations because the State failed to provide Lewis with the original VHS tape during discovery.
The trial court denied all three defense motions. With regard to Lewis's motion to suppress, the trial court noted that "[t]here does appear to be some slight break [in the chain of custody] . . . arguably though sufficient enough time to have tampered with [the tape]." 5 RP at 618. However, the trial court ruled that such evidence affected the weight that the fact finder should give to the VHS tapes, rather than their admissibility.
The trial court also denied Lewis's CrR 8.3(b) motion. The trial court ruled that the State mishandled the original VHS tape by allowing the SCC to retain custody prior to trial, but found that this did not affect Lewis's right to a fair trial. Additionally, the trial court found no misconduct when the State failed to notify Lewis that Exhibit 2-A was a copy because Lewis was "equally able to discover" that the tape was a copy based on the label markings. 5 RP at 606. Finally, the trial court agreed that the State violated CrR 4.7 by failing to provide Lewis with the original videotape during discovery, but ruled that this was not prejudicial to the defense.
CrR 8.3(b) states that "[t]he court shall set forth its reasons in a written order." After the trial court issued its oral ruling on the CrR 8.3(b) motion, it asked the prosecutor to prepare the written order. However, the record on appeal contains no written order. Nevertheless, the trial court's oral findings are sufficiently specific to permit review.
On May 10, 2007, a jury found Lewis guilty as charged. The trial court sentenced Lewis to 12 months in jail. The trial court denied Lewis credit for time served at the SCC, but credited him for 35 days he spent in Pierce County Jail. The trial court denied Lewis's CrR 7.8 motion to reconsider the denial of credit for time served at the SCC.
ANALYSIS
I. Credit for Time Served at SCC
We review a trial court's decision on a CrR 7.8 motion for abuse of discretion. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 879-80, 123 P.3d 456 (2005).
Lewis argues that he is entitled to credit for time served because: (1) his presentencing confinement at the SCC was "partial confinement" under RCW 9.94A.030(32), which triggers the mandatory "credit for all confinement time served" provision in RCW 9.94A.505(6); (2) the state and federal constitutions entitle him to credit for time served at the SCC; or (3) the equitable doctrine of "time served at liberty" applies. Appellant's Br. at 28. These arguments fail.
A sentencing court must give an offender credit for "all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced." RCW 9.94A.505(6) (emphasis added). "Confinement" includes "partial confinement" and "total confinement." RCW 9.94A.030(11); see also RCW 9.94A.030(32), (47) (defining "partial confinement" and "total confinement," respectively).
Lewis's argument that he was partially confined at the SCC, and therefore statutorily entitled to credit for time served, fails because he was not confined "solely in regard to the offense for which [he was] sentenced." RCW 9.94A.505(6). Prior to charging, the State had committed Lewis to the SCC pursuant to a valid civil commitment order for sexually violent predators under chapter 71.09 RCW. When the trial court released Lewis on his own recognizance pending trial, it was only by virtue of his prior commitment order that Lewis returned to confinement at the SCC. Thus, RCW 9.94A.505(6) does not apply as a matter of law and the trial court properly denied Lewis's CrR 7.8 motion.
The right to equal protection under our federal and state constitutions guarantees that persons similarly situated with respect to a legitimate purpose of the law receive like treatment. U.S. Const. amend. XIV, § 1; Wash. Const. art. I, § 12; State v. Harner, 153 Wn.2d 228, 235, 103 P.3d 738 (2004). Lewis contends that the trial court's failure to credit him with time served violates the Equal Protection Clause of the state and federal constitutions. See U.S. Const. amend. XIV, § 1; Wash. Const. art. I, § 12. First, he argues that he is similarly situated to the defendants in two Washington State Supreme Court cases. See In re Pers. Restraint of Knapp, 102 Wn.2d 466, 687 P.2d 1145 (1984) and Reanier v. Smith, 83 Wn.2d 342, 346, 517 P.2d 949 (1974). Second, he cites " actual violations of equal protection" in Pierce County, noting that at least one other SCC resident received presentencing credit for time served at the SCC as part of a plea agreement. Appellant's Br. at 27.
First, Lewis is not "similarly situated" to the Reanier and Knapp defendants because the State committed him to a treatment center prior to, and independent of, his criminal charges and conviction. The State committed Lewis to the SCC in 2003 as a result of a "serious mental disorder[]." See RCW 71.09.010. In contrast, Reanier and Knapp both involved situations in which the State confined the defendants to psychiatric hospitals or treatment centers as punishment for their crimes, or in order to receive presentencing treatment specifically related to the commission of their crimes. The defendants in Reanier and Knapp were not involuntarily confined for an underlying mental disorder prior to committing a crime. Thus, they are not "similarly situated" to Lewis.
The Reanier court held that four convicts, one of whom was periodically confined at Western State Hospital, should be constitutionally credited with presentencing detention time because state statutes required that credit be given for post-sentencing detention time. See Reanier, 83 Wn.2d at 343, 351-53; see also RCW 9.95.062 (1974) and RCW 9.95.063 (1974). The court found that there was no rational basis for distinguishing presentencing and post-sentencing detention time. The Knapp court held that time spent confined in a state mental hospital pursuant to a valid criminal conviction must be credited against the subsequently imposed sentences. Knapp, 102 Wn.2d at 467, 476.
Second, Lewis contends that denying him credit for time served at the SCC raises "actual violations of equal protection" in Pierce County. Appellant's Br. at 26-27. Lewis cites two trial court orders establishing conditions of release for Paul Moore and Bob Pugh as examples of Pierce County cases which SCC residents were granted credit for time served at the SCC. Lewis argues that denying him credit for time served at the SCC when other defendants similarly situated received that benefit violates his right to equal protection under the state and federal constitutions.
This argument fails because Lewis is not "similarly situated" to Moore or Pugh. Neither defendant was released on personal recognizance, as Lewis was. Instead, Moore and Pugh were released to the SCC's supervision, and their orders specifically stated that they would receive credit for time served. In both cases, credit for time spent at the SCC was obtained by agreement with the prosecuting attorney. Moore recognized that a release on personal recognizance would not entitle him to credit for time served at the SCC, so he specifically requested different release conditions that would enable him to earn credit for his time at the SCC. Lewis's right to equal protection under the law was not violated simply because he failed to request a similar compromise.
Alternatively, Lewis argues that he is entitled to credit for time served at the SCC under the equitable doctrine of "time served at liberty," citing In re Pers. Restraint of Roach, 150 Wn.2d 29, 74 P.3d 134 (2003), and State v. Dalseg, 132 Wn. App. 854, 134 P.3d 261 (2006). Appellant's Br. at 28-29. The Washington Supreme Court adopted the doctrine of time served at liberty in Roach, holding, "[A] convicted person is entitled to credit against his sentence for time spent erroneously at liberty due to the State's negligence, provided that the convicted person has not contributed to his release, has not absconded legal obligations while at liberty, and has had no further criminal convictions." Roach, 150 Wn.2d at 37 (emphasis added). This doctrine was applied in Dalseg to grant credit for time served to defendants who were erroneously enrolled in a work release program at the Nisqually Tribal Jail that did not comply with statutory requirements. Dalseg, 132 Wn. App. at 864. Defense counsel had inquired whether the Nisqually work release program complied with the defendants' judgment and sentences before the sentencing hearing, and the State assured defense counsel that it did. Dalseg, 132 Wn. App. at 866.
In the present case, Lewis does not allege that the State made a mistake that led to his release on personal recognizance. He argues that his release can be attributed to the State's recommendation, and this "creates an appearance of unfairness, by shifting the burden of his confinement back on the SCC, thereby avoiding his incarceration at the Pierce County Jail at the County's expense." Appellant's Br. at 30. First, Lewis agrees that incarcerating SVPs in a county jail pending trial presents significant security risks and liability for the County, thus undermining his argument that the State's recommendation was unfair. More importantly, the "appearance of unfairness" does not entitle a defendant to credit for time served at liberty. Only time erroneously spent at liberty due to the State's mistake or negligence may be credited towards the defendant's sentence. Roach, 150 Wn.2d at 37. As discussed above, Lewis was committed to the SCC prior to the charged crime, pursuant to a valid civil commitment order for SVPs. It was by virtue of this prior order, and not a mistake made by the State, that Lewis returned to the SCC when he was released on personal recognizance. The equitable doctrine of credit for time served at liberty does not apply to this case, and the trial court properly denied Lewis credit for time served at the SCC.
II. Chain of Custody
Lewis asserts that the trial court abused its discretion by denying his motion to suppress the VHS tapes that contained child pornography because the chain of custody was inadequate. Lewis focuses on the unknown "whereabouts" of the original VHS tape (Exhibit 5-A) from the moment SCC staff removed it from his room until they placed it in the evidence locker in the staff room. Appellant's Br. at 12. We find that the trial court did not abuse its discretion.
We review a trial court's admission of evidence that requires proof of chain of custody for abuse of discretion. See State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). The trial court abuses its discretion only if its decision is "'manifestly unreasonable or is based on untenable reasons or ground.'" State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007) (quoting State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)).
In order to be properly admitted into evidence, a physical object connected with the commission of a crime must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed. Campbell, 103 Wn.2d at 21. The court should consider various factors, including (1) "the nature of the article," (2) "the circumstances surrounding the preservation and custody" of the article, and (3) "the likelihood of [] tampering" or alteration. Campbell, 103 Wn.2d at 21 (quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960)). Minor discrepancies or uncertainty on the part of the witness affect the weight of the evidence, not its admissibility. Campbell, 103 Wn.2d at 21.
We will not reverse due to an error in admitting evidence unless the error results in prejudice to the defendant. State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004) (citing State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). If the alleged error is from violation of an evidentiary rule rather than a constitutional mandate, we do not apply the more stringent "harmless error beyond a reasonable doubt" standard. Thomas, 150 Wn.2d at 871 (quoting Bourgeois, 133 Wn.2d at 403). Instead, we apply the rule that "error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." Thomas, 150 Wn.2d at 871 (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). Improperly admitted evidence is harmless error if it is of minor significance in reference to the overall, overwhelming evidence as a whole. Thomas, 150 Wn.2d at 871.
B. Substantive Review
1 Exhibit 5-A
The State established a sufficient chain of custody for Exhibit 5-A. After viewing pornography on the VHS tape, McIntyre gave the tape to Blackburn. Although McIntyre was unable to recall what Blackburn did with the VHS tape, Lewis testified that staff placed the VHS tape "in the box along with the rest of my videotapes and CDs." 5 RP at 751. McIntyre and Hogan also testified that their standard operating procedure was to place confiscated items into an evidence bin that was later placed in a secure locker. Tate, the swing shift manager, stated that she placed an evidence bin containing items confiscated from Lewis's room into an evidence locker in the staff office. Hogan stated that he, McIntyre, and Blackburn witnessed the items being placed into the locker.
Only Weeks had a key to access the evidence. Early the next morning, Weeks took the evidence bin from the staff office locker and moved it to a more secure locker in the SCC evidence room, to which only he had access. Weeks testified that Exhibit 5-A stayed in that locker from the time that Weeks reviewed its contents on January 12, 2006 until the Friday before trial. On that Friday, Weeks brought the tape to his residence, locked it in his gun safe, and retrieved it on Monday morning to bring to court.
2 Exhibit 2-A
The State also established a sufficient chain of custody for Exhibit 2-A. Weeks testified that he made a copy of the VHS tape confiscated from Lewis's room and hand-delivered it to Detective Portmann a week or two after the room search. Detective Portmann immediately submitted the tape to the department's property room. Detective Jackson checked out Exhibit 2-A three times for investigational purposes. Every time that he did so, he kept the tape in a locked office. The facts support a finding of an intact chain of custody, and the trial court did not abuse its discretion by denying Lewis's motion to suppress the VHS tapes.
Even if the trial court had abused its discretion, the error would not have been prejudicial. The State introduced other evidence that Lewis possessed a VHS tape containing child pornography, including: (1) Lewis's admission of possession before and during trial; (2) testimony by McIntyre and Dexter that they saw Lewis watching pornography when they entered his room to search it; and (3) Smith's testimony that Lewis was making vulgar comments about young girls while watching the videotape.
In his brief, Lewis cites State v. Neal, 144 Wn.2d 600, 30 P.3d 1255 (2001), in support of his contention of prejudicial error. Neal is not relevant here. In Neal, the court found that the trial court abused its discretion and committed reversible error by admitting a lab certification report even though the report did not strictly comply with CR 6.13(b)(1), an exception to the hearsay rule. Neal, 144 Wn.2d at 611. The alleged error here has nothing to do with strict compliance with CR 6.13(b)(1) or any other court rule or statute.
III. Governmental Misconduct
Lewis contends that the trial court should have granted his motion to dismiss pursuant to CrR 8.3(b). He alleges that the trial court abused its discretion in denying his motion because "the state's witnesses had an opportunity to tamper with the evidence and it was impossible to determine that the tape had not been tampered with." Appellant's Br. at 18. We disagree.
We review a trial court's denial of a motion to dismiss under CrR 8.3(b) for manifest abuse of discretion. See State v. Hanna, 123 Wn.2d 704, 715, 871 P.2d 135 (1994).
To prevail on a CrR 8.3(b) motion, a defendant must show: (1) "arbitrary action or governmental misconduct," and (2) "prejudice affecting [the defendant's] right to a fair trial." State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003) (quoting State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997)). Governmental misconduct "need not be of an evil or dishonest nature; simple mismanagement is sufficient." Wilson, 149 Wn.2d at 9 (quoting Michielli, 132 Wn.2d at 239). However, dismissal is an extraordinary remedy that the court should provide only in "truly egregious cases of mismanagement or misconduct." Wilson, 149 Wn.2d at 9 (quoting State v. Duggins, 68 Wn. App. 396, 401, 844 P.2d 441, aff'd, 121 Wn.2d 524, 852 P.2d 294 (1993)).
Lewis based his CrR 8.3(b) motion on the State's (1) failure to disclose that it left the original VHS tape in the SCC's custody prior to trial, and (2) failure to disclose that the VHS tape it gave to Lewis during discovery was not the VHS tape confiscated from his room, but rather a copy.
First, the trial court ruled that leaving the VHS tape in the SCC's custody constituted misconduct. However, it ruled that such misconduct did not materially affect Lewis's right to a fair trial. The trial court noted that the State offered to admit Exhibit 2-A in place of Exhibit 5-A once the error was discovered, and the defense declined. The trial court surmised that admission of both tapes could help Lewis's position. By pointing out the discrepancy between the two tapes, Lewis could support his claim that he was attempting to record over the pornography from the beginning of the tape.
Second, the trial court ruled that there was no "intentional misconduct" when the State failed to disclose that the tape shared with Lewis was a copy. The court stated that "both parties were equally able to discover that that [the tape] was a copy and not the original" during discovery. 5 RP at 606. The trial court specifically noted that the copy was visibly different from the original tape — it did not have a list of four movies on its label and had the word "copy" written on it. 5 RP at 606.
The trial court did not act in a "manifestly unreasonable" way by denying Lewis's CrR 8.3(b) motion. See Mason, 160 Wn.2d at 922. During discovery, the State provided Lewis with a near-exact copy of the tape confiscated from his room. This adequately alerted Lewis to the visual material that the State would be introducing against him at trial. Lewis declined the State's offer to omit the "brief clip of pornography" from its presentation to the jury, possibly for strategic reasons. 4 RP at 554. Furthermore, apart from the VHS tape, the State introduced other evidence that Lewis possessed child pornography. The State's misconduct did not materially affect Lewis's right to a fair trial and the trial court did not abuse its discretion in denying Lewis's motion.
Affirmed.
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.
Van Deren, C.J. and Hunt, J., concur.