State Of Washington v. John Michael Sanchez ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
July 21, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52916-5-II
Respondent,
v.
JOHN MICHAEL SANCHEZ, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — John Sanchez appeals his conviction for tampering with a witness. He
argues that the trial court erred by denying a motion for a new trial after instructing the jury on an
uncharged alternative way of tampering with a witness. He argues he was prejudiced. The State
concedes the error but contends it was harmless. We agree with Sanchez and reverse.
FACTS
In June 2018, Sanchez, an inmate at the Thurston County Jail, had two unresolved cases.
The State listed Rachel Nickels, the mother of Sanchez’s two children, as a witness in both cases.
Jail staff believed that Sanchez would attempt to contact Nickels in violation of a no-contact order,
so they put a hold on any mail from Sanchez’s custody unit sent to Nickels’s address.
Lieutenant Jenny Hovda intercepted an envelope addressed to “Shiloh Princton” at
Nickels’s address. Clerk’s Papers (CP) at 128. The return address listed Kyle Baker, a “jail friend”
of Sanchez’s who was housed in the same custody unit. 1 Report of Proceedings (RP) at 104. The
envelope contained a letter and some drawings. Hovda recognized the handwriting on the letter
as Sanchez’s because Sanchez wrote multiple complaints to Hovda during his incarceration.
52916-5-II
Hovda also observed that the drawings were addressed to “Noah” and “Taj.” 1 RP at 156. Hovda
knew from listening to approximately 100 hours of Sanchez’s calls at the jail that his children were
named Noah and Taj.
The letter stated in relevant part, “As long as you don’t cooperate, they will drop a lot of
this stuff. I will still have to plea to something” and, “I’ve been here way too long. I need to be
released now. You need to help in that by not cooperating or returning calls and not [unreadable].”
1 RP at 155.1 Nickels identified the author as Sanchez based on the handwriting, the drawings,
the content of the letter, and the way the author signed the letter as “[her] soulmate.” 2 RP at 222.
The State charged Sanchez with one count of witness tampering. The information alleged
that he “attempted to induce Rachel Nickels . . . a witness or person he or she has reason to believe
is about to be called as a witness in any official proceeding or a person whom he or she has reason
to believe may have information relevant to a criminal investigation or the abuse or neglect of a
minor child to testify falsely or, without right or privilege to do so, to withhold any testimony.”
CP at 1.
Sanchez proposed a “to convict” instruction that, as relevant here, limited the means of
committing witness tampering to inducing a witness to “testify falsely or withhold testimony,” the
only alternative charged by the State. 2 RP at 242; CP at 89.
1
Hovda read portions of the letter during the State’s case: “There’s a sentence, ‘As long as you
don’t cooperate, they will drop a lot of this stuff. I will still have to plea a something, but at least
it’s not’ and I can’t read the writing on that part.” And “Then ‘I’ve been here way too long. I need
to be released now. You need to help in that by not cooperating or returning calls and not’—and
again, I can’t read the writing.” 1 RP at 155.
When the State read the same portions of the letter during closing, it added “but at least it’s
not ten to life-er” to the end of the first statement, and “or returning calls and not testifying” to the
end of the second one. 2 RP at 270.
2
52916-5-II
The court drafted its own jury instructions for the parties to review. The court asked for
objections and exceptions. After the parties reviewed the instructions given by the court, Sanchez
neither objected nor excepted.
The court’s draft included the State’s “to convict” instruction which read:
To convict the defendant of the crime of tampering with a witness as
charged, each of the following elements of the crime must be proved beyond a
reasonable doubt:
(1) That on or about June 15, 2018, the defendant attempted to induce
Rachel Nickels to testify falsely, or without right or privilege to do so, withhold
any testimony or absent herself from any official [proceeding]; and
(2) That Rachel Nickels was a witness or a person the defendant had reason
to believe was about to be called as a witness in any official proceedings; and.
(3) That any of these 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 121 (Instr. 10).
Another jury instruction stated:
A person commits the crime of tampering with a witness when he or she
attempts to induce a witness or person he or she has reason to believe is about to be
called as a witness in any official proceeding to testify falsely or, without right or
privilege to do so, to withhold any testimony or to absent himself or herself from
any official proceedings.
CP at 118 (Instr. 7).
At trial, Sanchez primarily argued that he did not write the letter. As a result, witness
testimony and closing arguments from both parties focused on that issue, rather than whether the
language of the letter amounted to tampering. However, both Sanchez and the State discussed the
elements of witness tampering and both mentioned absenting oneself from the proceedings in
closing argument. After going through each element of the to convict instruction, the State argued
that the language of the letter showed an attempt “to induce [Nickels] not to testify.” It also argued
3
52916-5-II
that “There is no clearer way to ask somebody not to come to court to testify than saying you need
help in that by not cooperating or returning calls and not testifying.” 2 RP at 298-300.
The jury found Sanchez guilty.
Relying on CrR 7.5(a), Sanchez moved for a new trial based on the jury instruction
containing an uncharged alternative of committing witness tampering. The State conceded the
error but argued that it was harmless. The court agreed with the State and denied the motion.
Sanchez appeals.
ANALYSIS
“Except where questions of law are involved, a trial judge is invested with broad discretion
in granting motions for new trial. The exercise of that discretion will not be disturbed on appeal
absent an abuse of discretion.” State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). When
a motion for a new trial is based on an alleged error of law, the trial court’s decision whether to
grant the motion is reviewed de novo. State v. Mohamed, 186 Wn.2d 235, 241, 375 P.3d 1068(2016).
Sanchez argues that he was denied due process because the jury instructions included an
uncharged alternative of committing witness tampering. The State concedes error but argues it
was harmless. Sanchez argues that because the jury could have convicted him on uncharged
alternative, he has shown prejudice. We accept the State’s concession but agree with Sanchez that
the error was not harmless.
The State is constitutionally required to inform an accused of the criminal charges he or
she will face at trial, and the State cannot try an accused for an uncharged crime. U.S. CONST.
amend. VI; CONST. art. I, § 22 (amend. 10); State v. Lindsey, 177 Wn. App. 233, 246-47, 311 P.3d
61 (2013). Instructing the jury on uncharged alternatives is a manifest error affecting a
4
52916-5-II
constitutional right that this court will address for the first time on appeal. State v. Laramie, 141
Wn. App. 332, 342, 169 P.3d 859 (2007); State v. Chino, 117 Wn. App. 531, 538, 72 P.3d 256(2003); RAP 2.5.
“When a statute sets forth alternative[s] . . . by which a crime can be committed, the
charging document may charge none, one, or all of the alternatives, provided the alternatives
charged are not repugnant to one another.” Chino, 117 Wn. App. at 539 (quoting State v.
Williamson, 84 Wn. App. 37, 42, 924 P.2d 960 (1996)). But, when the information charges only
one of the alternatives, it is error to instruct the jury that it may consider other ways or means by
which the crime could have been committed, regardless of the range of evidence admitted at trial.
State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988).
The manner of committing a crime is an element and the defendant must be informed of
this element in the information in order to prepare a proper defense. Bray, 52 Wn. App. at 34.
“One cannot be tried for an uncharged offense.” Bray, 52 Wn. App. at 34. Therefore, an
instruction containing an uncharged alternative is error. Bray, 52 Wn. App. at 34.
“An erroneous instruction given on behalf of the party in whose favor the verdict was
returned is presumed prejudicial unless it affirmatively appears that the error was harmless.” Bray,
52 Wn. App at 34-35.
An instructional error stemming from uncharged alternatives may be harmless when
additional instructions potentially cured the error by clearly and specifically defining the charged
crime. State v. Severns, 13 Wn.2d 542, 549, 125 P.2d 659 (1942). An error may also be harmless
where no evidence was presented on alternative means. State v. Spiers, 119 Wn. App. 85, 89-90,
79 P.3d 30 (2003). Error may be exacerbated by the State’s reference to the uncharged means
during closing argument. Severns, 13 Wn.2d at 548-49. The error cannot be harmless when the
5
52916-5-II
jury possibly convicted the accused on the basis of the uncharged alternative. Chino, 117 Wn.
App. at 540-41.
RCW 9A.72.120(1) provides that:
A person is guilty of tampering with a witness if he or she attempts to induce a
witness or person he or she has reason to believe is about to be called as a witness
in any official proceeding . . . to:
(a) Testify falsely or, without right or privilege to do so, to withhold any
testimony; or
(b) Absent himself or herself from such proceedings; or
(c) Withhold from a law enforcement agency information which he or she
has relevant to a criminal investigation or the abuse or neglect of a minor child to
the agency.
Both instruction 7, the definition of tampering with a witness, and instruction 10, the to-
convict instruction, listed the uncharged alternative of inducing the witness to absent himself or
herself from official proceedings. RCW 9A.72.120(1)(b). We accept the State’s concession that
the court erred by instructing the jury on an alternative not alleged in the information. The
instructional error is presumed prejudicial unless it affirmatively appears the error was harmless.
Bray, 52 Wn. App at 34-35.
First, it should be noted that the State argued in closing that the letter read, “You need to
help in that by not cooperating or returning calls and not testifying.” 2 RP at 270. In contrast,
Hovda could not read “not testifying” at the end of the sentence. The court admitted the letter into
evidence; therefore, the jury could determine if the State’s reading was accurate. By reading the
letter in this manner, the State injected a fact to support a finding that Sanchez induced the witness
to absent herself from the trial.
There are cases where jury instructions containing an uncharged alternative constituted
harmless error. In those cases, the error was harmless because the jury could not have considered
or convicted under the uncharged alternative. That circumstance is not present here.
6
52916-5-II
First, no other instruction cured the error by specifically defining the charged crime or
limiting the jury’s consideration to only the charged alternative. Severns, 13 Wn.2d at 549. Also,
the evidence supported both the charged and the uncharged alternative. Spiers, 119 Wn. App. at
89. The letter asked Nickels to help Sanchez by “not testifying,” which could mean absenting by
not showing up when called, or it could mean withholding testimony by attending trial but refusing
to testify. Finally, both the State and Sanchez exacerbated the error by referring to the uncharged
alternative during their respective closing arguments. Severns, 13 Wn.2d at 549. The State told
the jury “There is no clearer way to ask somebody not to come to court to testify than saying you
need help in that by not cooperating or returning calls and not testifying.” 2 RP at 298-300. It is
possible that the jury convicted Sanchez under the “absent from official proceedings” alternative
so the error was not harmless.
Nevertheless, the State argues that it affirmatively showed that any error was harmless
because under the facts of this case, “absenting from an official proceeding” and “withholding
testimony” amount to the same thing. Therefore, there is no possibility that the jury could have
convicted Sanchez of the uncharged means without also convicting him of the charged means.
However, absenting oneself from trial is not the same as withholding testimony. A juror
could have viewed Sanchez’s request that Nickels help him by “not testifying” as a request to not
attend trial at all, i.e. absent herself. A juror also could have viewed the language of the letter as
a request that she withhold testimony even if she appeared at trial.
The court instructed the jury that it could convict Sanchez if it found that he attempted to
induce Nickels to absent herself. The State accentuated the error by arguing that Sanchez
attempted to induce Nickels to “not to come to court to testify.” 2 RP at 299. Because Sanchez
7
52916-5-II
could have been convicted under the alternative not charged in the information, the State has failed
to show the error was harmless. The trial court erred in denying the motion for a new trial.
We reverse.
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.
Melnick, J.
We concur:
Worswick, J.
Sutton, A.C.J.
8