State of Washington v. Jessie M. Allert ( 2020 )


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  •                                                                   FILED
    JUNE 2, 2020
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                          )         No. 36718-5-III
    )
    Respondent,              )
    )
    v.                              )         UNPUBLISHED OPINION
    )
    JESSIE M. ALLERT,                             )
    )
    Appellant.               )
    LAWRENCE-BERREY, J. — Jessie Allert appeals after a jury found him guilty of
    multiple crimes, including hit and run, property damage. We accept the State’s
    concessions that the hit and run conviction must be vacated and the restitution order must
    be modified to exclude a witness’s travel expense. We otherwise affirm.
    FACTS
    Jessie Allert, while driving erratically and on sidewalks, struck and knocked over a
    mailbox. Another driver witnessed Allert’s erratic driving and called 911. While on the
    telephone, the caller saw Allert knock over the mailbox, get out of his car, and take the
    mailbox over to some nearby storage unit sheds. Allert did not knock on any doors or
    make any calls while there. He just drove away.
    No. 36718-5-III
    State v. Allert
    Eventually, Undersheriff Scott Coppess received the report of Allert and his erratic
    driving. Undersheriff Coppess located Allert, who stopped before the undersheriff had
    activated his emergency lights. Allert admitted to erratic driving and hitting the mailbox,
    but claimed he was tired and was planning on finding the owner of the mailbox to pay for
    it. During the stop, the undersheriff learned that Allert was driving with a suspended
    license, and placed him under arrest. A warrant search of Allert’s car found a loaded
    rifle, a vial containing methamphetamine, and multiple plastic bags.
    The State charged Allert with (1) possession of methamphetamine with intent to
    deliver, with a special allegation that, at the time of the commission of the crime, he was
    armed with a firearm, (2) driving under the influence, (3) driving with license suspended,
    (4) hit and run, property damage,1 and (5) unlawful possession of a loaded firearm in a
    motor vehicle.
    During trial, Allert became noticeably ill and was coughing during jury selection.
    When the State rested, Allert was still sick and defense counsel was not sure whether
    Allert would testify. The trial court ended proceedings early in order to give Allert more
    1
    The State cited RCW 46.52.010 in its charging document. Under this statute,
    there are two alternates for charging hit and run, property damage. The State’s charging
    language mirrors RCW 46.52.010(2), “damage to property fixed or placed upon or
    adjacent to any public highway.” Clerk’s Papers (CP) at 10.
    2
    No. 36718-5-III
    State v. Allert
    time to recover. The next day, Allert decided not to testify and requested a jury
    instruction regarding his right not to testify. The court then recessed.
    When court reconvened, defense counsel placed on the record a prior ex parte
    discussion she had with the trial court judge.
    [P]rior to trial I let the—I let Your Honor know that my client was very sick
    and I had talked with him, or I attempted to talk with him in the days prior
    and he simply couldn’t . . . it was my impression that Jessie wanted—
    wanted to move forward with trial. . . . I had brought these concerns to
    Your Honor and counsel prior to jury selection and Your Honor did ask me,
    well, what do you want to do? And I was kind of waffling because I—I just
    wasn’t sure. I had some misgivings. However, and then State’s counsel
    mentioned that they had—they had to fly somebody here from Hawaii, that
    there was some additional costs that were incurred and I think it was
    generally decided we would soldier on and Your Honor made a remark
    yesterday about hopefully Mr. Allert would have enough time to heal if we
    left—left early. I want to just make the—a clear record that it was indeed
    my client’s decision to move forward with trial in light of his sickness . . . .
    Report of Proceedings (RP) at 252-53.
    The prosecutor then explained it was proper to place the pretrial ex parte chambers
    discussion on the record to avoid possible public trial issues being raised on appeal. In
    his opinion, the pretrial discussion was a ministerial issue concerning scheduling, not
    anything that touched upon the facts or the disposition of the case itself. The trial court
    agreed “there was no discussion of substantive matters.” RP at 255. Defense counsel
    3
    No. 36718-5-III
    State v. Allert
    agreed there was no public trial issue, adding “our Judge is very competent and able to—
    to protect that.” RP at 256.
    Once the evidence was presented, the trial court instructed the jury. One
    instruction purported to define hit and run, property damage. The instruction actually
    defined hit and run, personal injury or death. See RCW 46.52.020. The instruction
    provided:
    (1)    That on or about the 13th day of November, 2017, the Defendant
    was the driver of a vehicle;
    (2)    That the Defendant’s vehicle collided with property fixed or adjacent
    to any public highway;
    (3)    That the Defendant knew that he had been involved in an accident;
    (4)    That the Defendant failed to satisfy his obligation to fulfill all of the
    following duties:
    (a)    Immediately stop the vehicle at the scene of the accident or as
    close thereto as possible.
    (b)    Immediately return to and remain at the scene of the accident
    until all duties are fulfilled,
    (c)    To take reasonable steps to either locate the operator or owner
    of the property struck and give that person his name and
    address and the name and address of the owner of the vehicle
    he was operating or leave in a conspicuous place upon the
    property struck a written notice giving his name and address
    and the name and address of the owner of the vehicle he was
    operating;
    (5)    That any of these acts occurred in Asotin County, the State of
    Washington.
    Clerk’s Papers (CP) at 29.
    4
    No. 36718-5-III
    State v. Allert
    The jury returned a verdict of guilty on all charges. The trial court sentenced
    Allert and imposed $1,271.09 of restitution damages, which included reimbursement for a
    witness’s $750 plane ticket.
    Allert timely appealed to this court.
    ANALYSIS
    Allert argues the trial court (1) violated his right to a public trial, (2) committed a
    manifest constitutional error by erroneously instructing the jury on the elements of hit and
    run, property damage, and (3) exceeded its statutory authority by imposing restitution to
    compensate the State for a witness’s travel expense.
    1.     PUBLIC TRIAL
    Allert contends the ex parte discussion between defense counsel and the court
    constituted a courtroom closure that violated his right to a public trial. He argues the
    discussion was akin to a competency hearing, and was therefore required to be held in
    public. We disagree.
    Both the United States Constitution and the Washington Constitution guarantee a
    defendant the right to have an open and public trial by an impartial jury. Presley v.
    Georgia, 
    558 U.S. 209
    , 212-13, 
    130 S. Ct. 721
    , 
    175 L. Ed. 2d 675
    (2010); State v. Bone-
    Club, 
    128 Wash. 2d 254
    , 260-61, 
    906 P.2d 325
    (1995); Seattle Times Co. v. Ishikawa, 97
    5
    No. 36718-5-III
    State v. Allert
    Wn.2d 30, 36, 
    640 P.2d 716
    (1982). Whether a trial court violated a defendant’s right to
    a public trial is a question of law this court reviews de novo. State v. Paumier, 
    176 Wash. 2d 29
    , 34, 
    288 P.3d 1126
    (2012).
    Before this court looks to whether a courtroom was actually closed, we first must
    determine if the proceeding implicated the right to a public trial at all. State v. Smith, 
    181 Wash. 2d 508
    , 514, 
    334 P.3d 1049
    (2014). To determine whether the right to a public trial
    attaches to a particular proceeding, we apply the “experience and logic” test. State v.
    Whitlock, 
    188 Wash. 2d 511
    , 521, 
    396 P.3d 310
    (2017). Both prongs must be satisfied in
    order for the right to a public trial to attach.
    Id. When analyzing
    the experience prong, this court looks to “‘whether the place and
    process have historically been open to the press and general public.’” State v. Sublett,
    
    176 Wash. 2d 58
    , 73, 
    292 P.3d 715
    (2012) (quoting Press-Enter. Co. v. Superior Court, 
    478 U.S. 1
    , 8, 
    106 S. Ct. 2735
    , 
    92 L. Ed. 2d 1
    (1986)). In analyzing the logic prong, we look
    to “‘whether public access plays a significant positive role in the functioning of the
    particular process in question.’”
    Id. (quoting Press-Enter.,
    478 U.S. at 8).
    Allert’s argument reflects a misunderstanding of when the ex parte discussion
    occurred and what was discussed. Because the discussion was placed on the record about
    the time Allert waived his right to testify, he argues the ex parte discussion occurred just
    6
    No. 36718-5-III
    State v. Allert
    prior to when he waived his right to testify and included this topic. The record does not
    support this. Rather, the ex parte discussion occurred just before trial and was about
    whether the trial would proceed. Defense counsel, upon learning the State had a witness
    flying in from Hawaii, assured the court that Allert’s illness would not require a
    continuance. She explained, “it was indeed my client’s decision to move forward with
    trial in light of his sickness and I—I just—I want to make sure that that didn’t impair his
    a—his—or factor into his ability as to testify or not testify.” RP at 253.
    Allert does not analyze the public trial issue with respect to what actually occurred
    below. We need not either. We nevertheless note that Allert provides no authority that
    the experience and logic prongs are met when a party confirms to the trial court that the
    trial will proceed.
    2.     IMPROPER JURY INSTRUCTION
    Allert contends the trial court erred by giving an improper jury instruction for hit
    and run, property damage. He argues, by giving the improper instruction, the trial court
    reduced the State’s burden of proof. The State concedes this issue.
    In a criminal case tried to a jury, due process requires the trial court to accurately
    instruct the jury on every element required to convict the defendant of the crime alleged.
    State v. Tyler, 
    191 Wash. 2d 205
    , 216, 
    422 P.3d 436
    (2018). Errors affecting the right to
    7
    No. 36718-5-III
    State v. Allert
    have the State prove every element of the charged offense beyond a reasonable doubt may
    be raised for the first time on appeal. State v. Johnson, 
    100 Wash. 2d 607
    , 614, 
    674 P.2d 145
    (1983), overruled on other grounds by State v. Bergeron, 
    105 Wash. 2d 1
    , 
    711 P.2d 1000
    (1985). We accept the State’s concession.2
    3.     IMPOSITION OF RESTITUTION
    Allert contends the trial court erred by imposing a restitution award that included a
    witness’s travel expense from Hawaii. The State rightly concedes this issue.
    “The authority to impose restitution is not an inherent power of the court, but is
    derived from statutes.” State v. Davison, 
    116 Wash. 2d 917
    , 919, 
    809 P.2d 1374
    (1991).
    “When the particular type of restitution in question is authorized by statute, imposition of
    restitution is generally within the discretion of the trial court and will not be disturbed on
    appeal absent an abuse of discretion.”
    Id. The applicable
    statute provides in relevant part:
    [R]estitution ordered by a court pursuant to a criminal conviction shall be
    based on easily ascertainable damages for injury to or loss of property,
    actual expenses incurred for treatment for injury to persons, and lost wages
    resulting from injury.
    2
    We have considered whether the unpreserved error may be raised on appeal, and
    believe it can. We construe the erroneous instruction differently than our concurring
    colleague.
    8
    No. 36718-5-111
    State v. Aller!
    RCW 9.94A.753(3). We have previously held that witness expenses incurred for trial
    purposes are not recoverable under RCW 9.94A.753. State v. Goodrich, 
    47 Wash. App. 114
    , 115, 
    733 P.2d 1000
    (1987).
    Here, the trial court imposed restitution and stated that $750 of the restitution
    amount was to recover a witness's expense of buying a plane ticket to testify. This type
    of expense is not allowed by statute and the trial court exceeded its authority by imposing
    it. We direct the trial court to enter a modified restitution order that omits this travel
    expense.
    Reversed in part and remanded to modify restitution order.
    A majority of the panel has determined this opinion will not be printed in the
    Washington Appellate Reports, but it will be filed for public record pursuant to
    RCW 2.06.040.
    j
    WE CONCUR:
    AL.wl-~-
    Melnick, J. 3        J
    3The Honorable Rich Melnick is a Court of Appeals, Division Two, judge sitting
    in Division Three under CAR 2l(a).
    9
    No. 36718-5-111
    KORSMO, J. (concurring)- I have signed the majority opinion, but write
    separately to make one additional point. Mr. Allert did not object to the elements
    instruction at trial. Accordingly, he waived his challenge to it and could not present it to
    this court. However, the State's concession saves Allert in this instance.
    The failure to raise an issue in the trial court normally precludes a party from
    raising the issue on appeal. RAP 2.5(a); State v. Scott, 
    110 Wash. 2d 682
    , 685, 
    757 P.2d 492
    (1988). The failure to challenge a jury instruction is a classic instance of waiver.
    Id. at 689-691.
    One exception to that rule is that a claim of manifest constitutional error can
    be asserted for the first time on appeal, if the record is adequate to address the issue.
    State v. McFarland, 
    127 Wash. 2d 322
    , 333, 
    899 P.2d 1251
    (1995). That exception is not
    argued in this case.
    With this observation, I join the majority opinion.
    Korsmo, ~