Opinion
No. 36381-0-II.
November 12, 2008.
Appeal from a judgment of the Superior Court for Pacific County, No. 07-1-00014-1, Michael J. Sullivan, J., entered May 15, 2007.
Affirmed by unpublished opinion per Bridge-water, J., concurred in by Houghton and Armstrong, JJ.
UNPUBLISHED OPINION.
The Pacific County Superior Court ordered a mistrial in Richard D. York's trial for two counts of delivering methamphetamine. York subsequently entered a plea agreement to the charges. He appeals, arguing inter alia, that double jeopardy precluded his retrial. We affirm.
FACTS
On October 11 and October 12, 2006, Pacific County Sheriff deputies arranged for Rod Oleachea, a confidential informant, to buy methamphetamine from York. The deputies arrested York on January 31, 2007, and the State charged him with two counts of unlawful delivery of methamphetamine within a school zone.
York's trial began on March 19, 2007, and the trial court swore in the jury. Right after the trial court sent the jury to lunch, the bailiff entered the jury room and found Oleachea using the telephone in the presence of all of the jurors. The trial court instructed the State that it should make sure that its witnesses never enter the jury room on the day of trial. During lunch, the bailiff told the trial court that she entered the jury room and found Oleachea eating lunch. Two jurors were eating in the jury room at the same time.
The trial court and defense counsel examined the bailiff, who responded that she observed Oleachea in the jury room twice, but she did not say anything to him the first time. The second time, she told him that he could not be there because it was the jury room. Oleachea responded that he was sorry and did not know. The bailiff asked the two jurors if they spoke with Oleachea and they said, " Oh, not really," leading the bailiff to believe that they had some conversation. RP (Mar. 19, 2007) at 46.
The trial court asked the prosecutor whether he spoke to Oleachea after the first incident and instructed him not to enter the jury room. The prosecutor responded that he had not seen Oleachea after the trial court's first instruction because he left the courthouse for lunch with defense counsel. The prosecutor told the trial court that he asked Pacific County Deputy Pat Matlock, who was still at the court, if he had had an opportunity to speak with Oleachea, but Matlock said that he had not seen Oleachea either. The prosecutor then informed the trial court that earlier in the morning before jury selection, Oleachea asked him the location of the restroom, and that the prosecutor directed him to the restroom inside the jury room. The prosecutor did not know anything else about why Oleachea would have been in the jury room.
Defense counsel requested a mistrial, which the trial court granted. Citing CrR 3.3(c), the trial court reset York's speedy-trial clock for another 60 days and scheduled the new trial for May 2, 2007.
Before the mistrial, defense counsel had planned to call Danyelle Stigar, who was in custody in Pacific County for a different matter, as a witness that would testify that she, not York, delivered the methamphetamine to Oleachea. Although the parties started to address the admissibility of Stigar's potential testimony, the trial court had not ruled on its admissibility before declaring the mistrial. Following the mistrial, the State expressed its intent to join York's case with Stigar's case.
The record indicates that Stigar is York's wife.
On April 20, 2007, the trial court disqualified York's counsel, who cited irreconcilable differences after York, among other things, filed a bar complaint against him. York's original defense counsel informed the trial court that he had subpoenaed Stigar to appear at the May 2, 2007 trial, but following the mistrial, he had not subpoenaed her to appear for the new trial because she was no longer in custody and he did not know how to reach her. York's new defense counsel informed the trial court that he had spoken with Stigar.
At a May 11, 2007 omnibus hearing, the parties informed the trial court that they were close to settling the case and the trial court set a change of plea hearing for May 15, 2007. At the change of plea hearing, the State offered a fourth amended information, removing the school zone enhancements. York agreed to enter an Alford plea to two counts of delivery of methamphetamine. The trial court examined York thoroughly and accepted his plea, sentencing him to 105 months in prison.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
ANALYSIS I. Double Jeopardy A. Oregon Constitution
York contends that the trial court's decision that the State could retry him following his mistrial offended double jeopardy based on the prosecutor's egregious misconduct during his first trial, particularly in failing to comply with the trial court's order to tell his key witness to stay out of the jury room. The United States Constitution guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Washington State Constitution guarantees, "No person shall . . . be twice put in jeopardy for the same offense." Const. art. I, § 9. Jeopardy attaches once the jury is selected and sworn. State v. Eldridge, 17 Wn. App. 270, 276, 562 P.2d 276 (1977), review denied, 89 Wn.2d 1017 (1978).
In general, double jeopardy does not bar retrial after a mistrial. State v. Rich, 63 Wn. App. 743, 747, 821, P.2d 1269 (1992). If the defendant consents to a mistrial, double jeopardy bars retrial when the prosecutor's intent is to goad the defendant to move for a mistrial. State v. Benn, 161 Wn.2d 256, 270, 165 P.3d 1232 (2007), cert. denied, 128 S. Ct. 2871 (2008); see Oregon v. Kennedy, 456 U.S. 667, 673, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982).
York presents two arguments: (1) the federal constitution bars his retrial, and (2) we should adopt the Oregon interpretation of its double jeopardy provision, which would bar his retrial. We address the state issue first where parties base arguments on parallel provisions of federal and state constitutions. State v. Coe, 101 Wn.2d 365, 373, 679 P.2d 353 (1984).
York first urges us to adopt the Oregon Supreme Court's interpretation of their constitution's double jeopardy provision, which provides broader protection than the federal constitution. State v. Hopson, 113 Wn.2d 273, 278, 778 P.2d 1014 (1989). The Oregon Constitution bars retrial when improper State conduct is so prejudicial it cannot be cured by means short of mistrial, the official knows the conduct is improper and prejudicial, and either intends or is indifferent to the resulting mistrial. State v. Kennedy, 295 Or. 260, 276, 666 P.2d 1316 (1983).
Our Supreme Court has previously addressed this portion of the Oregon Constitution. See Hopson, 113 Wn.2d at 273; see State v. Gocken, 127 Wn.2d 95, 105, 896 P.2d 1267 (1995). The Gocken court performed a Gunwall analysis to determine whether the Washington Constitution provides broader constitutional protections for successive prosecutions under article I, section 9 of the constitution after the defendant requested that this state adopt the federal "same conduct" test instead of the "same elements" test. Gocken, 127 Wn.2d at 101. The Gocken court held that this state gives, article I, section 9 of the constitution the same interpretation the Supreme Court gives the Fifth Amendment and that the Gunwall factors did not support finding that the state double jeopardy clause provides broader protection to defendants than the federal double jeopardy clause. Gocken, 127 Wn.2d at 107.
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
York argues that Gocken is not dispositive for his claim because our courts have not yet interpreted article I, section 9 of the constitution in the context of prosecutorial misconduct. "A determination that a given state constitutional provision affords enhanced protection in a particular context does not necessarily mandate such a result in a different context." State v. Russell, 125 Wn.2d 24, 58, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). Further, if our courts reject an expansion of rights under a particular state constitutional provision in one context, it does not necessarily foreclose such an interpretation in another context. Russell, 125 Wn.2d at 58. Therefore, York asks us to conduct a Gunwall analysis. The State agreed during oral argument before this court that we should perform a Gunwall analysis under Russell. We address the issue in two fashions — first, using a Gunwall analysis and second, examining whether, in any event, York's claim could prevail under Oregon's interpretation.
1. Gunwall
The first and second Gunwall factors require this court to evaluate the textual language of the state constitution and any significant differences in the texts of parallel provisions of the federal and state constitutions.
Washington courts have consistently held the double jeopardy clause of the Fifth Amendment and the double jeopardy clause in Const. art. I, § 9 are virtually identical. State v. Schoel, 54 Wn.2d. 388, 391, 341 P.2d 481 (1959) (the federal and state double jeopardy clauses are identical in thought, substance and purpose); State v. Larkin, 70 Wn. App. 349, 352-53, 853 P.2d 451 (1993). Washington courts have also consistently held the same interpretation is given to Const. art. I, § 9 as is afforded to the Fifth Amendment by the United States Supreme Court. State v. Ridgley, 70 Wn.2d 555, 556, 424 P.2d 632 (1967) (Const. art. I, § 9 has been construed to provide protection identical to that provided under the federal constitution); Larkin, 70 Wn. App. at 352-53; State v. Kirk, 64 Wn. App. 788, 790-91, 828 P.2d 1128, review denied, 119 Wn.2d 1025 [, 38 P.2d 691] (1992).
Gocken, 127 Wn.2d at 102-03.
The third Gunwall factor requires us to examine the constitutional and common-law history of article I, section 9 of the constitution. Gocken, 127 Wn.2d at 103. York cites Hopson, arguing that The Journal of the Washington State Constitutional Convention 1889, at 498 n. 16 (Beverly P. Rosenow ed., 1962) supports that Washington patterned its double jeopardy provision after the Oregon double jeopardy provision. But our Supreme Court has already disagreed with this premise. Gocken, 127 Wn.2d at 103.
In State v. Brunn, 22 Wn.2d 120, 154 P.2d 826 (1945), we expressed our opinion as to the origin of article I, section 9 of the constitution.
Candidly speaking, it is most unlikely that those who drafted our constitution, and the people who adopted it, greatly concerned themselves with the constitutional provision under discussion, or had any clear or fixed idea of its technical meaning. It is more likely that the provision was inserted in Article 1, entitled "Bill of Rights," [ sic] because it was in the Federal bill of rights, and had been included in the constitutions of practically all of the states that had theretofore entered the Union.
Brunn, 22 Wn.2d. at 139; Gocken, 127 Wn.2d at 103.
York's argument also overlooks the Gocken court's statement, based on footnote 16 of the Journal, that the Oregon Constitution and the United States Constitution were considered before Washington adopted article I, section 9 of the constitution. Gocken, 127 Wn.2d at 104.
The fourth Gunwall factor requires us to examine preexisting state law. Gocken, 127 Wn.2d at 104. York contends that in 1909, our legislature enacted RCW 10.43.040, which provided greater protection from prosecution involving another state or country. York then contends that our courts have extended this bar to prosecutions of defendants previously tried in federal court, citing State v. Caliguri, 99 Wn.2d 501, 512, 664 P.2d 466 (1983). While this statement may be accurate, York asks us to conduct a Gunwall analysis in the context of prosecutorial misconduct as it relates to mistrials. York's argument fails to address how preexisting law would support his argument.
RCW 10.43.040 provides:
Whenever, upon the trial of any person for a crime, it appears that the offense was committed in another state or country, under such circumstances that the courts of this state had jurisdiction thereof, and that the defendant has already been acquitted or convicted upon the merits, in a judicial proceeding conducted under the criminal laws of such state or country, founded upon the act or omission with respect to which he is upon trial, such former acquittal or conviction is a sufficient defense.
The fifth Gunwall factor requires us to examine any differences in structure between the federal and state constitutions. Gocken, 127 Wn.2d at 104. State v. Young, 123 Wn.2d 173, 867 P.2d 593 (1994), provides that the fifth Gunwall factor will always point toward pursuing an independent state constitutional analysis because the federal constitution is a grant of power from the states, while the state constitution represents a limitation of the State's power. Young, 123 Wn.2d at 180.
York argues that the absence in the Washington Constitution of the phrase "life or limb," which is present in the federal constitution, indicates a notable textual difference. Br. of Appellant at 11. He argues that the federal language could apply only in cases involving physical punishment, although he acknowledges that the federal courts do not interpret it in that manner. Nevertheless, he argues that this textual difference supports broader protections under the Washington double jeopardy provision. This argument is not persuasive.
The sixth Gunwall factor requires us to examine matters of particular state interest or local concern. Gocken, 127 Wn.2d at 105. York contends that our double jeopardy provision should provide no less protection than our exclusionary rule, which does more than merely deter police misconduct; it also serves to protect privacy interests and to preserve the integrity of the judiciary. State v. Bonds, 98 Wn.2d 1, 12, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). York contends that we should construe our double jeopardy provision to minimize the number of mistrials caused by government misconduct. While minimizing mistrials is certainly a noble goal, we hold that mistrials offer protection when both intentional and unintentional prosecutorial misconduct prevent the defendant from receiving a fair trial. Inadvertent prosecutorial misconduct, even under Oregon's interpretation, is insufficient to bar retrial. Hopson, 113 Wn.2d at 280.
We conclude that the Gunwall factors do not support York's contention that the state double jeopardy clause provides broader protection to criminal defendants than the federal double jeopardy clause. We hold article I, section 9 of the constitution is given the same interpretation the Supreme Court gives to the Fifth Amendment.
2. York's Claim Applying the Oregon Constitution
We use our Supreme Court's reasoning in Hopson to determine whether York could prevail even if we applied the Oregon standard. Hopson, 113 Wn.2d at 282. The Hopson court began by analyzing the history of State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1324 (1983) ( Kennedy II), where, on redirect, the prosecutor asked a state witness "whether the reason he had never done business with defendant was 'because he was a crook.'" Kennedy II, 295 Or. at 277. In Kennedy II, the Oregon trial court found no bar to retrial and, after the appellate court reversed on federal grounds, the Oregon Supreme Court denied review. The United States Supreme Court accepted review on a writ of certiorari from the Oregon appellate court. Finding no federal bar to retrial, the United States Supreme Court reversed and remanded, instructing that the Oregon courts were free to determine that the Oregon Constitution granted broader protection than the federal double jeopardy provision. Oregon v. Kennedy, 456 U.S. 667, 680, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982) ( Kennedy I) (Brennan, J., concurring). On remand, the Oregon appellate court affirmed the conviction on state grounds, assuming the state and federal protections were the same. On review, the Oregon Supreme Court determined that the Oregon Constitution provided broader protection. Kennedy II, 295 Or. at 262. But, even under the broader standard, the facts of the case did not bar retrial. Kennedy II, 295 Or. at 262.
The Oregon Supreme Court announced the Oregon rule as follows:
[A] retrial is barred by article I, section 12, of the Oregon Constitution when improper official conduct is so prejudicial to the defendant that it cannot be cured by means short of a mistrial, and if the official knows that the conduct is improper and prejudicial and either intends or is indifferent to the resulting mistrial or reversal.
Kennedy II, 295 Or. at 276. The Kennedy II court emphasized that the difference between the federal and Oregon double jeopardy standards is "quite narrow":
The sole issue is whether, as four Justices maintained, there is room for a double jeopardy bar beyond the case of an intentionally provoked mistrial when a prosecutor "harasses" the defendant with what the prosecutor knows to be prejudicial error.
. . . [A] guarantee against "harassment" implies a requirement of some conscious choice of prejudicial action before the guarantee bars correction of the error by a new trial. Negligent error, "gross" or otherwise, is not enough.
Kennedy II, 295 Or. at 272-73.
This is not a "should have known" standard. "[T]he court must find whether the official in fact had that knowledge. Incompetence, thoughtlessness, or excitability of the state's officers may lead to a mistrial, but it does not reflect a willingness to risk placing the defendant repeatedly in jeopardy for the same offense." Kennedy II, [ 295 Or.] at 277.
Hopson, 113 Wn.2d at 280.
Here, early in the morning, the prosecutor instructed his client as to where to locate the restroom, without informing him that the restroom was located within the jury room. The prosecutor told the trial court that he had not seen Oleachea after the first incident to instruct him regarding the jury room. He informed the trial court that he checked with Deputy Matlock, but the deputy had not seen Oleachea either. We hold that even under Oregon's Constitution, the prosecutor here was merely incompetent or thoughtless, which required a mistrial, but the prosecutor's behavior did not rise to the level to satisfy the narrow exception that would bar retrial. Kennedy II, 295 Or. at 277. Thus, even if we were to adopt the Oregon broader protection standard, York's claim fails.
B. Federal constitution
York next argues that prosecutorial misconduct barred his retrial even under the federal constitution because the prosecutor intended to goad him to request a mistrial. He then describes an alleged plot by the prosecutor:
The prosecutor learned of the defense witness [Stigar] the Friday before trial. He was upset about being presented with this witness and did not want her to testify. He was also disappointed he did not get to join the witness's trial with York's. York's witness was only available because she was in custody. The prosecutor could easily have anticipated her absence if the case were delayed. The prosecutor directed his witness to the jury room men's room without informing his witness he was entering the jury room or telling him not to come back when the jury was present. The prosecutor did this after he knew the defense planned to call an unanticipated witness he wanted suppressed. The prosecutor also knew his witness had returned to the jury room during the morning. Yet, in spite of the judge's warning to keep the witness from reentering the jury room, the prosecutor . . . did nothing to prevent the [witness from returning]. . . .
The mistrial favored the prosecutor's goal of eliminating York's witness. There was no trial March 19 when her appearance was certain. She was out of custody by York's next hearing date. Defense counsel was able to reach her by telephone on April 27. However, her attendance at the June 11 trial date was questionable.
Br. of Appellant at 8-9 (citations omitted). York's intent argument is untenable. This court cannot accept that the prosecutor intended to goad York to request a mistrial to allow time for the State to release Stigar, thus somehow preventing York from securing his own wife's presence in his second trial.
II. Right To Present A Defense
York argues in his Statement of Additional Grounds (SAG) that defense counsel and the State violated his right to present a defense. A fundamental element of due process is the right to offer a defense and the testimony of witnesses. State v. Burri, 87 Wn.2d 175, 181, 550 P.2d 507 (1976). He makes two arguments: (1) the State prevented him from bringing forth evidence that Stigar committed the crime, and (2) defense counsel refused to call even one witness on his behalf. Both arguments lack merit.
York's argument that the State prevented him from bringing forth evidence that Stigar committed the crime is factually inaccurate. The State actually intended to join York's case with Stigar's on retrial, thus not only allowing, but facilitating a situation where Stigar could testify if she chose to do so.
York's contention that counsel failed to allow him to present a defense by failing to call witnesses on his behalf is specious. York never had a trial in which to call witnesses. Instead, York chose to enter a plea agreement with the State, which he does not address in his SAG. These arguments lack merit.
III. Speedy Trial
York claims that the trial court violated his speedy trial rights because the trial court reset his speedy-trial clock after the prosecutor deliberately caused the mistrial. SAG at 6-7. But he waived this claim when he pleaded guilty. Garrison v. Rhay, 75 Wn.2d 98, 101, 449 P.2d 92 (1968); In re Pers. Restraint of Teems, 28 Wn. App. 631, 632, 626 P.2d 13 (1981).
IV. Prosecutorial Misconduct
York argues that the prosecutor intentionally sabotaged his proceeding by allowing the State's key witness to communicate with the jurors in this case, thus forcing a mistrial so that the prosecutor could "cover up the release of the person who not only was charged with the same types of charges as was the petitioner but would have testified to the fact she was the person . . . who actually committed the crimes [now] at issue." SAG at 9. It is unclear why York presents this argument, as the trial court already granted him his remedy in a mistrial based on Oleachea's contact with the jury.
The actual question here is whether the prosecutor intentionally goaded York to ask for a mistrial, which we addressed above. Benn, 161 Wn.2d at 270.
A defendant may prevail on a claim of prosecutorial misconduct by showing the conduct of the prosecuting attorney was improper and had a prejudicial effect on the jury's verdict, provided the defendant objects and requests a curative instruction unless such an instruction would not cure it. State v. Davis, 141 Wn.2d 798, 840, 10 P.3d 977 (2000). Here, the prosecutor did two things: (1) he instructed his witness as to where to locate the restroom, without informing him that the restroom was located within the jury room, and (2) he did not see Oleachea after the trial court instructed him to tell his witness not to enter the jury room. Here, the prosecutor should not have directed his witness to the restroom in the jury room, even if the jury was not there yet. But, we cannot say that the prosecutor's actions had a prejudicial effect on the jury's verdict, because the jury never reached a verdict. Accordingly, this argument fails.
V. Ineffective Assistance
York next claims that he received ineffective assistance of counsel because his counsel failed to "call the witnesses that he knew would clearly [substantiate] his defence [sic] and when this wilful mistake on the part of the Prosecutor occured [sic][,] he failed to file a motion to dismis [sic] or even supress [sic] the evidence the State sought to introduce thereby failing his client in the most fundamentally wrong way." SAG at 11-12.
We review claims of ineffective assistance of counsel de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012 (1996). To demonstrate ineffective assistance of counsel, York must show that: (1) defense counsel's representation was deficient; i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances and (2) defense counsel's deficient representation prejudiced the defendant; i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have differed. State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). York must overcome a strong presumption that counsel's performance was not deficient. Nichols, 161 Wn.2d at 8.
York contends that his counsel's representation was deficient because he failed to call witnesses and he failed to file a motion to dismiss or suppress the State's evidence. As an initial matter, it is unclear what State's evidence York refers to and, accordingly, we do not consider this portion of York's claim because it does not inform us of the nature and occurrence of alleged errors as RAP 10.10(c) requires. As mentioned above, we do not fault defense counsel for failing to call witnesses when neither York nor the State presented their cases to the jury. The trial court's early ruling regarding the mistrial combined with York's choice to plead guilty rather than face retrial defeats this contention.
York next contends that defense counsel's failure to ask for a mistrial constituted ineffective assistance. The failure to seek dismissal of the charges, where a motion to dismiss would probably be granted, constitutes ineffective assistance of counsel. See State v. Carter, 56 Wn. App. 217, 224, 783 P.2d 589 (1989). But we do not find prejudice unless there is a reasonable probability that the charges would have been dismissed if trial counsel had requested a dismissal. State v. Johnston, 143 Wn. App. 1, 18, 177 P.3d 1127 (2007). Here, the trial court never reached the merits of the case and informed York that it was unaware of any rule of law, court rule, or Supreme Court rule that would mandate dismissal of his case based on the prosecutor's actions and the confidential informant's actions. By its own admission, the trial court would not have granted such a request. Accordingly, this argument fails.
Finally, York contends that his counsel was ineffective for failing to object to the State's decision to add a school zone enhancement. This contention is moot and irrelevant as the State dropped the school zone enhancements before York pleaded guilty.
VI. Probable Cause
York's final argument deals with probable cause. Although York frames the argument as an attack on the State's charging documents, he actually argues lack of probable cause, presumably to support his plea agreement. Accordingly, we must consider his argument as it relates to that plea agreement, specifically a motion to withdraw his plea agreement.
"Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). CrR 4.2(d) requires the trial court to satisfy itself that a factual basis supports the plea. During his plea hearing, the trial court asked York whether, if the State presented its evidence and witnesses, there was a good probability that the jury would find him guilty, to which he replied, "Yeah." RP (May 15, 2007) at 36. The trial court verified that it could rely on the State's declaration of probable cause to provide a factual basis for the pleas.
The State's declaration of probable cause provided descriptions of the deputies' personal observations of York selling methamphetamine to Oleachea on two separate days. We hold that probable cause existed to provide the trial court with the required factual basis to support York's pleas.
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.
HOUGHTON, P.J. and ARMSTRONG, J., Concur.