State Of Washington v. James John Sharples ( 2015 )

COURT QF
APPEALS
DIVISION 11
2015 FEB 24
Al 9: 26
STATE OF
WASHINGTO I
BY
UTY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 44756 -8 -II
Respondent,
v.
JAMES JOHN SHARPLES, UNPUBLISHED OPINION
Appellant.
JOHANSON, C. J. — James John Sharples appeals his jury trial conviction for driving under
the influence (DUI) —refusals and his sentence. Sharples argues that ( 1) the trial court violated his
and the public' s right to a public trial by holding an in- chambers conference with counsel to discuss
Club2
matters concerning jury voir dire without first conducting a Bone - analysis, ( 2) under Alleyne
v. United States, U. S. , 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), the charging information
was deficient because it failed to allege " elements" of the " refusal" enhancement, and ( 3) under
Alleyne, the jury instructions relieved the State of its burden to prove an essential " element" of the
s
Former RCW 46. 61. 502 ( 2011); former RCW 46. 61. 5055 ( 2011).
2
State v. Bone -Club, 128 Wash. 2d 254, 906 P.2d 325 ( 1995).
No. 44756 -8 -II
refusal" enhancement, or, in the alternative, he received ineffective assistance of counsel when
his counsel proposed these instructions. Holding that ( 1) the matters discussed in the in- chambers
conference did not implicate any public trial rights under the " experience and logic" test,3 ( 2) the
charging information was sufficient, ( 3) any potential instructional error was invited error, and ( 4)
Sharpies does not establish deficient performance, we affirm.
FACTS
I. BACKGROUND
On May 6, 2012, Skamania County Deputy Sheriff Summer Scheyer stopped the vehicle
Sharpies was driving after observing him speeding and driving " erratic[ ally]." 2 -A Report of
Proceedings ( RP) at 124. When his vehicle came to a stop, Sharpies jumped out of the car. After
a struggle, Deputy Scheyer restrained Sharpies. Deputy Scheyer noticed that Sharpies appeared
intoxicated. Sharpies refused to participate in any field sobriety tests. The deputy arrested
Sharpies for DUI and transported him to the jail.
At the jail, Deputy Scheyer read Sharpies the informed consent warnings for the blood
alcohol concentration (BAC) breath test; he refused to sign the form. Although Sharpies initially
agreed to the breath test, when the deputy asked Sharpies to blow into the DataMaster BAC
machine, he did not attempt to blow into it. After asking him twice and giving him time to comply,
Deputy Scheyer concluded that Sharpies had refused the breath test.
3
State v. Sublett, 176 Wash. 2d 58, 72 -73, 292 P.3d 715 ( 2012).
Although only four justices signed
the lead opinion in Sublett, Justice Stephens' s concurrence created a majority who adopted the
experience and logic" test. Sublett, 176 Wash. 2d at 136 ( Stephens, J., concurring). More recently,
a unanimous Supreme Court cited Sublett in applying the " experience and logic" test in In re
Personal Restraint of Yates, 177 Wash. 2d 1, 28 -29, 296 P.3d 872 ( 2013).
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No. 44756 -8 - II
II. PROCEDURE
A. CHARGES
The State charged Sharples with DUI— refusa1.4 Because Sharples had one previous DUI
conviction in 2012, the refusal allegation increased the potential minimum time Sharples would
have to spend in jail by 45 days. Former RCW 46. 61. 5055( 2)( b)( i). The case went to a jury trial.
B. IN- CHAMBERS CONFERENCE
Before jury selection started, the trial court announced that it would meet with counsel in
chambers to discuss a variety of matters in preparation for the jury trial. Neither party objected to
the in- chambers conference.
The conference was not contemporaneously transcribed, but the trial court described it on
the record following the conference:
Okay. First of all, counsel and I did have a conference in chambers. We discussed
the procedure for selecting a jury. On voir dire each side will be permitted thirty
minutes of questioning on the first go- around, and if needed, ten minutes of follow -
up.
If counsel feels that that' s insufficient after the ten minutes, you can request
additional time; however, I think probably -- both counsel I think agreed that thirty
plus ten is sufficient.
We discussed general questions. The Court will ask the standard general
questions. Both counsel indicate they did not have any general questions of their
own at this point.
We discussed alternate jurors. The one alternate will be seated; therefore,
each side will get seven peremptory challenges. And juror No. 13 will be seated as
the alternate juror.
Witnesses will be excluded. Both sides are cautioned to instruct their
witnesses that after they testify they are not to discuss their testimony with any
other -- any of the witnesses who have not yet testified.
4 The State also charged Sharples with custodial assault and two counts of intimidating a public
servant. The jury found him not guilty of the two intimidating a public servant charges, and the
trial court declared a mistrial as to the custodial assault charge. These charges /convictions are not
at issue in this appeal.
No. 44756 -8 -II
We also discussed the potential witnesses that would be called. The State
has provided to the Court five potential witnesses, and the Defense indicated that
they did not have any witnesses other than possibly the defendant, if he decides to
testify.
Motions in limine have already been dealt with this morning earlier.
Both sides have presented to the Court its proposed jury instructions. We' ll
have an instructions conference toward the end of the trial to determine the final
jury instructions.
Also the Court requested that each party if they have any physical exhibits
that they present them to the clerk and have them pre -marked just so we can save
some time during trial.
2 -A RP at 90 -92 ( emphasis added). Both parties agreed that nothing else had happened during the
in- chambers conference that needed to be put on the record. At no point before or after the in-
chambers conference did the trial court discuss the Bone -Club factors.
C. TRIAL TESTIMONY
At trial, the State' s witnesses testified as described above. Sharpies was the only defense
witness.
Sharpies admitted that he had been driving while intoxicated. But he testified that he had
attempted to blow into the BAC, but his attempts did not register.
D. JURY INSTRUCTIONS
The trial court' s DUI to- convict instruction was substantially the same as the one Sharpies
offered except that it omitted references to whether Sharpies was under the combined influence of
or affected by intoxicating liquor and drugs:
To convict the defendant of driving under the influence, as charged in count
one, each of the following three elements of the crime must be proved beyond a
reasonable doubt:
That on or about May 6, 2012, the defendant drove a motor vehicle.
1)
2)
That the defendant at the time of driving a motor vehicle was under the
influence of or affected by intoxicating liquor.
3) That this act occurred in the State of Washington.
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No. 44756 -8 -II
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 as
to count one.
On the other hand, if,after weighing all 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 as to count one.
Clerk' s Papers ( CP) at 83.
The trial court also instructed the jury,
A person refuses a law enforcement officer' s request to submit to a test to
determine the person' s breath alcohol concentration when the person shows or
expresses a positive unwillingness to do the request or to comply with the request.
CP at 86. Sharples had requested an identical instruction.
In addition, the trial court provided the jury with the following special verdict form:
We, the jury, answer the question submitted by the court as follows:
QUESTION: Did the defendant refuse to submit to a test of his breath
which was requested by a law enforcement officer for the purpose of determining
the alcohol concentration of the defendant' s breath?
CP at 107. Although the trial court' s special verdict form had a different format, it contained the
exact language Sharples had proposed in his special verdict instruction.
E. VERDICT AND SENTENCE
The jury found Sharples guilty of DUI. The jury also answered " yes" to the special verdict.
CP at 107. Sharples appeals.
DISCUSSION
I. PUBLIC TRIAL
Sharples first argues that the trial court' s failure to conduct a Bone -Club inquiry before
discussing various preliminary matters with counsel in-chambers violated both the public' s and
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No. 44756 -8 -II
his right to a public trial. We disagree. Sharples has failed to show the in- chambers conference
here implicated any public trial right under the " experience and logic" test.
A. STANDARD OF REVIEW
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State Constitution guarantee a defendant the right to a public trial. State v. Wise, 176
Wash. 2d 1, 9, 288 P.3d 1113 ( 2012). We review alleged violations of the public trial right de novo.
Wise, 176 Wash. 2d at 9.
B. EXPERIENCE AND LOGIC TEST
The threshold determination we must make when addressing an alleged violation of the
public trial right is whether the proceeding at issue even implicates the right. State v. Sublett, 176
Wash. 2d 58, 71, 292 P.3d 715 ( 2012). Sharples bears the burden of establishing that a public trial
violation has occurred. In re Pers. Restraint of Yates, 177 Wash. 2d 1, 29, 296 P.3d 872 ( 2013).
Our Supreme Court adopted the two -part " experience and logic" test to address whether a
particular proceeding implicates public trial rights. Sublett, 176 Wash. 2d at 72 -73. This test asks,
1) "`` [ W]hether the place and process have historically been open to the press and general public '
experience prong), and ( 2) "' whether the public access plays a significant positive role in the
functioning of the particular process in question ' ( logic prong). Sublett, 176 Wash. 2d at 73 ( quoting
Press -Enterprise Co. v. Superior Court of Calif.for Riverside County, 478 U.S. 1, 8, 106 S. Ct.
2735, 92 L. Ed. 2d 1 ( 1986)). Only if we can answer both questions affirmatively does the trial
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No. 44756 -8 -II
court' s action implicate any public trial right. Sublett, 176 Wash. 2d at 73. Sharples fails to carry his
burden under the logic prong.'
Sharples argues that the public trial right existed here because ( 1) the matters discussed in-
chambers were
largely part of the jury selection process, ( 2) such matters are traditionally
addressed in open court, and ( 3) discussions about the court' s questioning of the venire is an
important part of the jury selection process, and "[ e] xcluding the public from a proceeding where
the court' s questions are formulated shrouds the process in mystery" and could undermine the
tenets of "[ b] asic fairness, the appearance of fairness, and the confidence in the criminal justice
system." Br. of Appellant at 8 -9 ( emphasis added). Even assuming, but not deciding, that such
matters are traditionally addressed in open court, Sharples does not present any argument as to
whether public access plays a significant positive role in the following matters addressed during
the in- chambers conference: ( 1) the amount of time each party would have to question the potential
jurors during voir dire, ( 2) the number and selection of the alternate juror, ( 3) the number of
peremptory strikes each party would have, ( 4) the exclusion of witnesses, ( 5) cautioning witnesses
not to discuss their testimony with any other witnesses, ( 6) the identities of the potential witnesses,
7) the submission of, but not discussion of, jury instructions, or ( 8) having the clerk premark the
physical exhibits. Thus, we will not address whether the public trial right attached to discussion
of these matters. RAP 10. 3( a)( 6).
At best, Sharples' s argument refers to the trial court' s statement that they had " discussed
general questions" related to the jury voir dire during the in- chambers conference. Br. of Appellant
Because Sharples fails to carry his burden under the logic prong, we need not examine the
experience prong.
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No. 44756 -8 -II
at 7. Although this statement mentions the type of questions the court would be asking the venire,
it does not establish that the parties and the court discussed the content of those questions during
the in- chambers hearing. Because we do not know exactly what was discussed, we cannot
determine whether public access to this proceeding would or would not have played a role in this
discussion. See State v. Njonge, 181 Wash. 2d 546, 556, 334 P.3d 1068 ( " We cannot presume the
existence of facts to which the record is silent. "), cert. denied, 135 S. Ct. 880 ( 2014). Regardless,
it does not appear that any of the values served by the public trial right were violated by this
proceeding.
The purposes of the public trial right are " to ensure a fair trial, to remind the officers of the
court of the importance of their functions, to encourage witnesses to come forward, and to
discourage perjury." State v. Brightman, 155 Wash. 2d 506, 514, 122 P.3d 150 ( 2005). There is
nothing in this record suggesting that any witnesses or testimony was involved in the discussion
of the standard jury venire questions, so there was no need to encourage witnesses to come forward
and no risk of perjury. And the appearance of fairness doctrine was satisfied by the trial court' s
statement on the record describing the proceeding and by the fact any of the court' s questions were
later presented in public when the trial court instructed the venire. For these reasons, we hold that
Sharples has not established that public access plays a significant positive role in the functioning
of the particular process in question ( the logic prong). Thus, he does not show that the public trial
right attached to this in- chambers proceeding, and this argument fails.
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No. 44756 -8 - II
II. ADEQUACY OF INFORMATION
Sharples next argues for the first time on appeal that the State' s information was deficient
because it failed to advise him of every " element" of the " refusal" enhancement.6 He argues that
under Alleyne, the State was required to allege the " essential elements" of the enhancement,
namely ( 1) that the arrest was a lawful arrest based on reasonable grounds to believe that he had
driven under the influence and (2) that the test he refused was a breath test to determine his breath
alcohol concentration. Even presuming, but not deciding, that the statutory language from the
refusal" enhancement statute were " elements" that the State had to allege in the information under
Alleyne, this argument fails because the facts can be found by fair construction, and nothing in the
record suggests that any lack of specificity in the information impeded Sharples' s ability to defend
against the " refusal" allegation.
A. STANDARD OF REVIEW AND TEST
We review challenges to the sufficiency of a charging document de novo. State v. Williams,
162 Wash. 2d 177, 182, 170 P.3d 30 ( 2007). An appellant may challenge the constitutional
sufficiency of a charging document for the first time on appeal. State v. Kjorsvik, 117 Wash. 2d 93,
103, 812 P.2d 86 ( 1991); see also State v. Zillyette, 178 Wash. 2d 153, 161, 307 P.3d 712 ( 2013).
But where, as here, the appellant challenges the information' s sufficiency for the first time on
6
The Sixth Amendment to the United States Constitution provides in part, " In all ... prosecutions,
the accused shall ... be informed of the nature and cause of the accusation." Similarly, article I,
section 22 of the Washington Constitution provides in part, " In criminal prosecutions the accused
shall have the right ... to demand the nature and cause of the accusation against him."
7 We acknowledge that our Supreme Court recently issued State v. McEnroe, 181 Wash. 2d 375, 333
P.3d 402 ( 2014), in which a similar issue was raised. But the court does not reach the issue of
whether Alleyne expanded the definition of "essential element," so it is not useful here.
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No. 44756 -8 -II
appeal, we construe the document liberally in favor of validity. Kjorsvik, 117 Wash. 2d at 105; see
also Zillyette, 178 Wash. 2d at 161. Under the liberal construction rule, we will uphold the charging
document if an apparently missing element may be " fairly implied" from the document' s language.
Kjorsvik, 117 Wash. 2d at 105 -06; see also Zillyette, 178 Wash. 2d at 162. We ask, "( 1) [ D] o the
necessary facts appear in any form, or by fair construction can they be found, in the charging
document; and, if so, ( 2) can the defendant show that he or she was nonetheless actually prejudiced
by the inartful language which caused a lack of notice ?" Kjorsvik, 117 Wash. 2d at 105 -06. We read
the charging document •as a whole, according to commonsense and including implied facts.
Kjorsvik, 117 Wash. 2d at 109; see also Zillyette, 178 Wash. 2d at 162.
B. FAIR CONSTRUCTION AND NO ACTUAL PREJUDICE
We first examine whether the facts .appear in any form or whether they can be found by
fair construction. We hold that they can.
Former RCW 46. 61. 5055 provided increased minimum penalties for defendants convicted
of DUIs " for whom by reason of the person' s refusal to take a test offered pursuant to [ former]
RCW 46. 20. 308 [( 2008)] there is no test result indicating the person' s alcohol concentration." See,
e. g., former RCW 46. 61. 5055( 2)( b). Former RCW 46.20.308( 1) stated that anyone operating a
motor vehicle in the state has given implied consent to tests of his breath for purposes of
determining alcohol or drug concentration if the arresting officer has reasonable grounds to believe
the person has been driving or in physical control of a motor vehicle while under the influence of
drugs or alcohol.
The charging information provided,
That he, JAMES JOHN SHARPLES, in the County of Skamania, State of
Washington, on or about May 6, 2012, did drive a vehicle while under the influence
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No. 44756 -8 -II
of or affected by intoxicating liquor or any drug; and /or while under the combined
influence of or affected by intoxicating liquor and any drug; contrary to Revised
Code of Washington 46. 61. 502( 1); and furthermore, the Defendant did refuse to
take a test offered pursuant to RCW 46.20.308; contrary to Revised Code of,
Washington 46.61. 5055.
CP at 2( emphasis added). Even assuming, but not deciding, that Alleyne required the State to
allege that ( 1) the arresting officer had reasonable grounds to believe that Sharples had driven
under the influence and ( 2) the test Sharples refused was a breath test, a liberal reading of the
information would allow a defendant to " fairly imply" these " elements." Kjorsvik, 117 Wash. 2d at
105 -06.
The fact this was a DUI charge clearly implies that the " test" mentioned in the information
was to determine whether Sharples was driving under the influence. That, in conjunction with the
information' s cite to " a test offered pursuant to RCW 46.20. 308," CP at 2, and former RCW
46.20. 308( 1)' s specific reference to " tests of his or her breath ... for the purpose of determining
the alcohol concentration ... in his or her breath ... if arrested for any offense where, at the time
of the arrest, the arresting officer has reasonable grounds to believe the person has been driving
while under the influence of intoxicating liquor," is sufficient to imply the alleged elements.
Sharples argues that under Zillyette, a mere citation to the statute is insufficient to provide
notice. Sharples reads Zillyette too broadly.
In Zillyette, the defendant challenged the information charging her with controlled
substances homicide because it did not identify the controlled substance she had allegedly
delivered to the victim. 178 Wash. 2d at 157. Although the court stated that the specific identity of
a controlled substance is not necessarily an essential element of controlled substances homicide, it
held that some degree of specification was necessary to establish the "`` illegality of the behavior
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charged ' because not all controlled substances can be the basis for controlled substances
homicide. Zillyette, 178 Wash. 2d at 160 ( internal quotation marks omitted) ( quoting State v. Ward,
148 Wash. 2d 803, 811, 64 P.3d 640 ( 2003)). Accordingly, the court held that if the information for
controlled substances homicide does not identify the controlled substance, it must at least specify
the applicable subsection under which the charge was made or identify the schedule of controlled
substance that caused the user' s death. Zillyette, 178 Wash. 2d at 160. Because the information did
not provide any basis for identifying the controlled substance, the court concluded that the
information failed to allege facts necessary to charge the defendant with controlled substance
homicide and dismissed the charge without prejudice. Zillyette, 178 Wash. 2d at 163 - 64. Here, in
contrast, the statute that the information cites refers to only one test, a breath test, and it refers in
the same sentence to the arresting officer having reasonable grounds to believe the defendant was
driving while intoxicated. This provides clear information about the charge and there is no chance
of confusion. Thus, a liberal reading of the information informed Sharples of the " elements" that
he now asserts were missing.
We next turn to the second prong of the test: Does Sharples show that he was nonetheless
actually prejudiced by the inartful language which caused a lack of notice? Kjorsvik, 117 Wash. 2d
at 106. Sharples does not attempt to argue that he was prejudiced by the allegedly defective
information. And nothing in the record suggests that any lack of specificity in the information
impeded Sharples' s ability to defend against the " refusal" allegation. Accordingly, this argument
fails.
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III. JURY INSTRUCTIONS
Sharpies next argues that the jury instructions failed to allege all the essential elements of
the crime because they omitted " elements" of the enhancement that were required after Alleyne.
He again contends that, under Alleyne, " the `` refusal' enhancement requires proof of a lawful arrest
based on reasonable grounds to believe that the accused person drove under the influence." Br. of
Appellant at 14 -15.
The trial court' s DUI to convict instruction was substantively identical to Sharples' s
proposed DUI to convict instruction, and the trial court' s enhancement instructions were identical
to those Sharpies proposed. Thus, any potential instructional error was invited error, and we will
not further address this issue. State v. Henderson, 114 Wash. 2d 867, 868, 792 P.2d 514 ( 1990)
invited error doctrine applies to alleged constitutional errors).
IV. EFFECTIVE ASSISTANCE OF COUNSEL
Finally, in a related argument, Sharpies argues that if we reject his jury instruction
argument under the invited error doctrine, his trial counsel provided ineffective assistance of
counsel in offering these instructions. To succeed on his ineffective assistance of counsel claim,
Sharpies must establish that his counsel' s conduct was deficient and that this deficient performance
was prejudicial. State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 ( 2011). Counsel' s representation
is deficient if it falls below an objective standard of reasonableness based on consideration of all
the circumstances. State v. McFarland, 127 Wash. 2d 322, 334 -35, 899 P.2d 1251 ( 1995). Sharpies
must overcome a strong presumption that counsel' s performance was reasonable. Grier, 171
Wash. 2d at 33; McFarland, 127 Wash. 2d at 336. Sharpies fails to establish deficient representation.
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Defense counsel' s proposed jury instructions were based on Washington Pattern Jury
Instructions.8 He proposed these instructions on March 11, 2013, and the jury returned its verdict
the following day. The Supreme Court did not, however, decide Alleyne until June 17, 2013, three
months later. Sharples' s instructional error argument is based entirely on Alleyne, but because
Alleyne had not been decided at the time of Sharpies' s trial, " his counsel can hardly be faulted for
requesting ... jury instruction[ s] based upon ... then -unquestioned WPIC[ s]." State v Studd, 137
Wash. 2d 533, 551, 973 P.2d 1049 ( 1999). Sharpies fails to overcome the presumption of effective
counsel and because Sharples cannot establish deficient performance, his ineffective assistance of
counsel claim fails.
We affirm.
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 in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
LSE,
8
See 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
92. 02, 92. 03, 92. 13 at 274 -75, 278, 290 ( 3d ed. 2008) ( WPIC).
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