Opinion
No. 36085-3-II.
August 26, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 06-1-00601-6, Richard L. Brosey, J., entered March 22, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Troy Steven McClure appeals his conviction for attempting to elude a pursuing police vehicle. We affirm.
FACTS
On June 29, 2006, Officer John Henry Brockmueller of the city of Toledo Police Department received a broadcast bulletin that advised to be on the lookout for a two-toned Ford pickup truck, 80s model, blue and gray in color. As Officer Brockmueller stepped into a residence on Oyler Road, he looked through a large picture window and saw a truck matching the description given by dispatch driving down Oyler Road. Officer Brockmueller could clearly see the driver and recognized him as McClure, with whom he was acquainted. Officer Brockmueller pursued the truck in his police vehicle with lights and siren engaged, but the vehicle would not pull over. The truck ran through stop signs and intersections and reached speeds of approximately 100 miles per hour.
Officer Brockmueller stopped the pursuit when the truck turned onto a dirt road and then into a hay field where the police vehicle could not follow. When back up arrived in an sport utility vehicle (SUV), Officer Brockmueller and the other officer continued the pursuit in the SUV, following the truck's tracks across the hayfield and into a line of trees. The tracks led through a barbed wire fence and finally to the truck that was stuck in some brush. The driver was gone. While Officer Brockmueller assisted a K-9 unit, another officer searched the truck.
The State ultimately charged McClure with attempting to elude a pursuing police vehicle. Officer Brockmueller was the only witness and testified to events as described above, stating that he was 100 percent certain that the person he saw driving the truck was McClure. Defense counsel sought a missing witness instruction arguing that the State should have called as a witness the officer that searched the truck, and the State's failure to call that witness should permit the jury to infer that the witness's testimony would have been unfavorable to the State. The court declined to give the instruction, ruling it was unwarranted. The jury convicted McClure as charged and the court imposed a sentence of 30 days. McClure filed a timely notice of appeal.
DISCUSSION
Missing Witness Instruction
McClure first contends that the trial court erred in declining to give a missing witness instruction. He contends such an instruction was warranted because the State failed to call Deputy Breen, who was allegedly the officer that searched the truck after it had been abandoned.
We disagree.
In certain circumstances, a party's failure to produce a particular witness who would "ordinarily and naturally testify raises the inference . . . that the witness's testimony would have been unfavorable." State v. McGhee, 57 Wn. App. 457, 462-63, 788 P.2d 603, review denied, 115 Wn.2d 1013 (1990). See also State v. David, 118 Wn. App. 61, 66, 74 P.3d 686 (2003). Under the missing witness doctrine, where a party fails to produce otherwise proper evidence within his or her control, the jury may draw an inference unfavorable to that party. State v. Russell, 125 Wn.2d 24, 90, 882 P.2d 747 (1994), cert denied, 514 U.S. 1129 (1995) (citing State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991)). The standard missing witness instruction, set forth in 11 Washington Pattern Jury Instructions: Criminal 5.20, at 130 (2d ed. 1994) (WPIC), states as follows:
If a party does not produce the testimony of a witness who is [within the control of] [or] [peculiarly available to] that party and as a matter of reasonable probability it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case.
WPIC 5.20, at 130.
This instruction is appropriate only when an uncalled witness is "`peculiarly available'" to one of the parties. David, 118 Wn. App. at 67 (quoting State v. Davis, 73 Wn.2d 271, 277, 438 P.2d 185 (1968)). Accordingly, a party seeking the benefit of the inference must show the missing witness was "peculiarly within the other party's power to produce." Blair, 117 Wn.2d at 491 (citation and internal quotation omitted). As Davis explained, for a witness to be "peculiarly available" there must have been such a "community of interest" between the party and the witness, or the party "must have so superior an opportunity for knowledge of a witness, as in ordinary experience would have made it reasonably probable that the witness would have been called to testify for such party except for the fact that his testimony would have been damaging." Davis, 73 Wn.2d at 276-77. The rationale behind this requirement is that a party "will likely" call as a witness "one who is bound to him by ties of affection or interest unless the testimony will be adverse," and that a party with a close connection to a potential witness will be more likely to determine in advance what the testimony would be. Blair, 117 Wn.2d at 490 (citing Davis, 73 Wn.2d at 277).
The missing witness doctrine does not apply if the witness is equally available to both parties. Blair, 117 Wn.2d at 490. But a witness is not equally available merely because he or she is physically present or subject to the subpoena power. Davis, 73 Wn.2d at 276. And a witness's availability may depend, among other things, upon his or her relationship to one or the other of the parties, and the nature of the testimony that he or she might be expected to give. Davis, 73 Wn.2d at 277.
The defendant must establish circumstances that would indicate as a matter of "reasonable probability" that the State would not knowingly fail to call the witness unless his testimony would be damaging. Davis, 73 Wn.2d at 280. "In other words, the inference is based, not on the bare fact that a particular person is not produced as a witness, but on his non-production when it would be natural for him to produce the witness if the facts known by him had been favorable." Davis, 73 Wn.2d at 280 (emphasis, citations, and internal quotations omitted). But a defendant need not prove the prosecution deliberately suppressed unfavorable evidence. David, 118 Wn. App. at 66.
Notably, no inference is permitted if the witness is unimportant or if the testimony would be cumulative. Blair, 117 Wn.2d at 489. The testimony's importance depends on the facts of each case. Blair, 117 Wn.2d at 489. Moreover, if the witness's absence can be satisfactorily explained, no inference is permitted. Blair, 117 Wn.2d at 489. The party against whom the rule would operate is entitled to explain the witness's absence and avoid operation of the inference. Blair, 117 Wn.2d at 489. An appellate court will not disturb a trial court's refusal to give the missing witness instruction absent a clear showing of abuse of discretion. David, 118 Wn. App. at 67.
Here, defense counsel requested the instruction arguing that it was only during Officer Brockmueller's testimony that he realized a different officer, possibly Deputy Dusty Breen, searched the truck after it had been found abandoned in a field. Defense counsel argued that the searching officer's testimony would bear on the issue of identity by showing whether there was "anything that would indicate that my client did or did not possess the vehicle," such as fingerprints or a wallet. RP (Mar. 21, 2007) at 89. The State responded that a missing witness instruction was not appropriate because the subsequent search of the vehicle was not material to the charge of attempting to elude. The State explained that its case turned on the testimony of Officer Brockmueller, who clearly stated that he saw who was driving the vehicle, and he was the "only person pursuing the vehicle," and the only person who terminated the pursuit. RP (Mar. 21, 2007) at 90. "No other officer saw who was driving the vehicle." RP (Mar. 21, 2007) at 90.
The trial court ruled that defense counsel's mere speculation and conjecture that there may have been something about the condition of the truck when it was found and searched by some unknown officer was an insufficient showing to warrant a missing witness instruction. The court stated, "I can't say that the circumstances establish, as a matter of reasonable probability, that the state would not knowingly fail to call a witness who searched the truck unless the witness's testimony would be damaging." RP (Mar. 21, 2007) at 97. We hold that the court applied the appropriate test, and did not abuse its discretion in declining to give a missing witness instruction under these circumstances. See Davis, 73 Wn.2d at 280. David, 118 Wn. App. at 67.
To-Convict Instruction
McClure also contends that reversal of his conviction is required because the to-convict instruction omitted essential elements of the charged offense and misstated the law. We disagree.
McClure argues that the to-convict instruction and the instruction that defines attempting to elude a police vehicle improperly reflected the language of the prior version of RCW 46.61.024(1), see former RCW 46.61.024(1) (1983), rather than the current statute as amended in 2003. Accordingly, he contends that the to-convict instruction misstated and omitted elements of the charged crime, thereby relieving the State of its burden of proving the essential elements of the charged crime beyond a reasonable doubt. The relevant instructions stated as follows:
A person commits the crime of attempting to elude a pursuing police vehicle when he willfully fails or refuses to immediately bring his vehicle to a stop after being given a visual or audible signal to bring the vehicle to a stop by a police officer, and while attempting to elude a pursuing police vehicle he drives his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others.
A signal to stop given by a police officer may be by hand, voice, emergency light, or siren. The police officer giving such a signal must be in uniform and the officer's vehicle must be appropriately marked showing it to be an official police vehicle.
CP at 32 (Instruction 4). The to-convict instruction stated:
To convict the defendant of Attempting to Elude a Pursuing Police Vehicle as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 29th day of June, 2006, the defendant drove a motor vehicle;
(2) That the defendant was signaled to stop by a uniformed police officer by hand, voice, emergency light or siren:
(3) That the signaling police officer's vehicle was appropriately marked, showing it to be an official police vehicle;
(4) That the defendant willfully failed or refused to immediately bring the vehicle to a stop after being signaled to stop;
(5) That while attempting to elude a pursuing police vehicle, the defendant drove his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others;
(6) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 33-34 (Instruction 5). McClure is correct that the court's instructions reflected the language of the former statute. RCW 46.61.024(1) was amended in 2003 as follows (italics show added language, strike through shows deleted language):
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless mannerindicating a wanton or willful disregard for the lives or property of otherswhile attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform andhis thevehicle shall beappropriately marked showing it to be an official police vehicle equipped with lights and sirens.
See Laws of 2003, ch. 101, § 1. McClure specifically challenges the to-convict instruction in two ways. He contends that the instruction misstates the law by requiring the jury to find that the defendant drove his vehicle in a "wanton or willful" manner as opposed to a "reckless" manner as required by the current statute. He also argues that the instruction omitted the element that the police vehicle be "equipped with lights and sirens." The State concedes that the instruction reflects the former statute, but contends the errors were harmless. We agree with the State.
A jury instruction that relieves the prosecution of its burden to prove an element of a crime is subject to harmless error analysis unless the error is structural and affects the framework under which the trial proceeds. State v. L.B., 132 Wn. App. 948, 954, 135 P.3d 508 (2006) (citations and internal quotations omitted). See also State v. Eaker, 113 Wn. App. 111, 120, 53 P.3d 37 (2002), review denied, 149 Wn.2d 1003 (2003). The errors asserted here are not structural and are, thus, subject to harmless error analysis. An error is harmless if it appears beyond a reasonable doubt that it did not contribute to the verdict. L.B., 132 Wn. App. at 954. It is the State's burden to prove the error was harmless beyond a reasonable doubt. L.B., 132 Wn. App. at 954.
Examples of structural errors include the absence of counsel for a criminal defendant, a judge who is not impartial, unlawful exclusion of members of the defendant's race from a grand jury, the right to self-representation at trial, the right to public trial, and involuntary statements or confessions of the defendant. See L.B., 132 Wn. App. at 954 n. 2 (citing Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).
Applied to an element omitted from, or misstated in, a jury instruction, "the error [is] harmless if that element is supported by uncontroverted evidence." L.B., 132 Wn. App. at 954 (citations and internal quotations omitted). Here, the missing "equipped with lights and sirens" element that was omitted from the to-convict instruction was supported by uncontroverted evidence. Officer Brockmueller described his patrol car during his testimony as "a 1996 Crown Victoria, white in color, has a full light bar across the top, a federal siren equipped, blue lettering on the side that says, `Toledo Police Department.'" RP (Mar. 21, 2007) at 66. The officer described the pursuit noting, "I activated my lights . . . and continued to follow [the defendant]." RP (Mar. 21, 2007) at 67. "After I got my lights activated and got up to speed, I noticed that he wasn't going to pull over and I activated my siren." RP (Mar. 21, 2007) at 67. No evidence contradicts this testimony.
In his reply, McClure additionally argues that Officer Brockmueller's testimony demonstrates only that his patrol car was equipped with "a single siren," and that is "insufficient to meet the requirements of RCW 46.61.024, which requires proof that the car was `equipped with lights and sirens.' RCW 46.61.024(1)." Appellant's Reply Br. at 2. But in analyzing the plain language of a statute we will avoid interpreting the statute in a manner that leads to unlikely, strained, or absurd results. Burns v. City of Seattle, 161 Wn.2d 129, 150, 164 P.3d 475 (2007). It would be unreasonable and absurd to suppose that the legislature intended to amend the statute to require proof that police vehicles be equipped with multiple sirens when the statute only requires that the officer's signal to stop "may be by hand, voice, emergency light, or siren." RCW 46.61.024. We decline McClure's invitation to interpret and apply the statute in an absurd manner. Burns, 161 Wn.2d at 150.
As to the mental element, the issue raised here was addressed in State v. Ridgley, 141 Wn. App. 771, 781-82, 174 P.3d 105 (2007), which held that "`willful or wanton' is a `higher mental state' than `reckless.'" Ridgley, 141 Wn. App. at 782 (citing State v. Roggenkamp, 153 Wn.2d 614, 626, 106 P.3d 196 (2005). Accordingly, "`reckless' conduct is established by proof of `willful or wanton' conduct." Ridgley, 141 Wn. App. at 782. Since the instruction here required the jury to find that McClure drove his vehicle in a wanton or willful manner rather than in a lesser "reckless" manner, the lesser mental state is established. As in Ridgley, the erroneous "willful or wanton" jury instruction is "harmless beyond a reasonable doubt." Ridgley, 141 Wn. App. at 782. Accordingly, applying Ridgley we hold that although the court erroneously instructed the jury on the elements of former RCW 46.61.024(1), under the circumstances of this case the instructional errors based on that former statute were harmless beyond a reasonable doubt.
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.
Quinn-Brintnall, J., Van Deren, C.J., concur.