State of Washington v. Daniel Lee Brown

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FILED
JAN. 16,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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DIVISION THREE
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STATE OF WASHINGTON,
Respondent,
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No. 31323-9-III
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DANIEL LEE BROWN, ) PUBLISHED OPINION
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Petitioner. )
FEARING, J. Neither party, out of principle, will budge one cent. So we are
asked to resolve a $17 dispute-who should pay for the copying of a 911 recording
demanded by a pecunious criminal defendant during discovery? The State offers Daniel
Brown's counsel the option to either listen to the recording at the prosecutor's office or
pay the sheriffs office reasonable costs for a copy. Brown argues that he need not pay
for discovery and thus the State's proposal violates CrR 4.7, RCW 10.01.160, and article
I, section 22 of the Washington Constitution. He moved below for dismissal or,
alternatively, to suppress the evidence. The trial court denied his motion. We affirm the
denial ofBrown's motion, since the court rule, the statute, and the constitution do not
impose upon the State the expense to copy records for a nonindigent defendant.
No. 31323-9-II1
State v. Brown
FACTS
On January 15,2012, Daniel Brown sent text messages to his former girl friend,
Nicolette Olson, threatening to shoot Olson's new friend, Justin Perrine. Olson received
the messages while at Perrine's apartment. The textative Brown consecutively wrote,
"I'll be in jail by morning for killing him will you please give me his apartment;" "What
if I just walk in and shoot;" and "I'm in the parking lot." Clerk's Papers (CP) at 29.
Nicolette Olson shared the text messages with Justin Perrine. Concerned for his
well being, Perrine turned off all lights in his apartment and called 911. When police
arrived at Perrine's apartment, they found Daniel Brown parked in the parking lot of the
apartment complex. Brown told police he had a pistol concealed in a pocket of his pants.
Police handcuffed Brown and retrieved the loaded pistol. Brown admitted to sending
threatening text messages to Olson's phone. Police searched his car and found a second
loaded firearm. The State charged Brown with felony harassment.
Daniel Brown filed a request for discovery to "inspect" and "copy" any "written or
recorded statements" of witnesses the State intended to call at trial. CP at 1. In response,
the State disclosed it possessed a recording of the 911 call from Justin Perrine. Brown
then requested a copy of the recording. The State informed Brown that he could obtain a
copy of the 911 recording from the sheriffs office for $17. The State explained it did not
have the technical capability to copy the recording on a disc. If, however, Brown did not
want to pay for a recording, the State offered his counsel an opportunity to listen to and
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No. 31323-9-III
State v. Brown
record the 911 call at the Spokane County prosecutor's office. Brown insisted on the
receipt of a copy of the recording and demurred at paying for the duplication.
Daniel Brown moved to dismiss the charges against him or, in the alternative, to
suppress the 911 recording. Brown argued the State violated the discovery rules in CrR
4.7 when it failed to provide a copy of the recording without charge. The trial court
denied Brown's motion, ruling that, although "[t]he defense is entitled to disclosure of
the 911 recording under the court rules, there is no finding of indigency or prejudice if
defendant is required to pay reasonable costs of duplicating the 911 recording." CP at 33.
LAW AND ANALYSIS
CrR4.7
Daniel Brown did not ask the trial court to impose the copying expense ofthe 911
recording upon the State. Nevertheless, his motion to dismiss or to exclude the recording
from trial presupposes that the State owes the duty to pay for the copying. We must
therefore address whether the State owes Brown the duty.
CrR 4.7(a)(I) states, "[T]he prosecuting attorney shall disclose to the defendant
... (i) the names and addresses of persons whom the prosecuting attorney intends to call
as witnesses at the hearing or trial, together with any written or recorded statements."
(Emphasis added.) In the past, the State argued it need not provide the defense with
actual copies of discoverable material, only disclose its existence. In two recent
decisions, the Washington Supreme Court rejected this argument and ruled that the State
must allow the defense to copy discoverable material. State v. Grenning, 169 Wash. 2d 47,
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No. 31323-9-111
State v. Brown
54,234 P.3d 169 (2010); State v. Boyd, 160 Wn.2d 424,435, 158 P.3d 54 (2007). In
Boyd, the superior court entered an order allowing defense counsel to access the mirror
image of a computer hard drive, but only in a State facility, during two sessions, and only
through the State's operating system and software. Our high court noted that CrR 4.7(a)
does not define "disclose." Boyd, 160 Wash. 2d at 433. But the general usage of
"disclose," the policies underlying the rules, and the provisions of CrR 4.7 indicate that
"disclose" includes making copies of certain kinds of evidence. Id. Where copies of
discovery material are necessary for defense counsel to provide effective representation,
"CrR 4.7(a) obliges the prosecutor to provide copies of the evidence as a necessary
consequence of the right to effective representation and a fair trial." Boyd, 160 Wash. 2d at
435.
Here, the State does not contest the 911 recording is necessary to an effective
defense of Daniel Brown. The State is willing to provide Brown a copy of the recording,
but wants Brown to pay for the duplication.
In Boyd, the Supreme Court wrote, "Any order ... should obligate the defense to
pay the reasonable cost of duplication." Id. at 438. The parties in Boyd likely did not
contest who paid for the cost of copying, but Brown provides us no decision supporting
his position that the State must pay the cost. He also forwards no prejudice to a fair trial
in the event he pays the expense. Thus, we hold that CrR 4.7(a) does not require the
prosecution to pay for reproduction expenses.
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No. 31323-9-III
State v. Brown
RCW 10.01.160
Next, Daniel Brown contends RCW 10.01.160 prohibits the State from imposing
costs "inherent in providing a constitutionally guaranteed jury trial." Nevertheless, the
State has not imposed any costs. Brown may elect to obtain a copy of the 911 call from
the sheriffs office for $17, or may listen to and record the 911 call at the prosecutor's
office.
ARTICLE I, SECTION 22 OF THE WASHINGTON CONSTITUTION
Article I, section 22 reads, in pertinent part, "In no instance shall any accused
person before fmal judgment be compelled to advance money or fees to secure the rights
herein guaranteed." Daniel Brown argues this provision of Washington's declaration of
rights entitles him to discovery materials without charge.
Washington courts have interpreted the constitutional provision on the
"advance[ment] of money or fees" at least four times. Stowe v. State, 2 Wash. 124, 126,
25 P. 1085 (1891); State ex rei. Coella v. Fennimore, 2 Wash. 370, 371, 26 P. 807
(1891); State ex rei. Mahoney v. Ronald, 117 Wash. 641, 643,202 P. 241 (1921); State v.
McCarter, 173 Wash. App. 912, 921, 295 P.3d 1210 (2010). The first three decisions
revolved around the issue of whether a judgment was final. In the latest decision in
McCarter, the defendant was charged with two driving offenses, and, upon the State's
dismissal of charges to pursue enhanced charges in the superior court, the district court
imposed warrant fees totaling $250. We held that the district court's imposition of fees
did not compel McCarter to advance money or fees in order to secure his rights as a
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No. 31323-9-III
State v. Brown
defendant under the Washington Constitution. None ofthese four previous decisions are
ofvalue in detennining whether Brown was "compelled to advance money or fees to
secure the rights" guaranteed in article I, section 22 of the Washington Constitution.
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We hold Daniel Brown was not "compelled to advance money or fees" in violation
of article I, section 22 of the constitution. (Emphasis added.) '''Where the language of
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the constitution is clear, the words used therein should be given their plain meaning.'"
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, Young v. Clark, 149 Wash. 2d 130, 133,65 P.3d 1192 (2003) (quoting City ofTacoma v.
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Taxpayers ofCity ofTacoma, 108 Wash. 2d 679, 706, 743 P.2d 793 (1987». "Compel"
J means to "force, drive, [or] impel," "as to force by physical necessity or evidential fact."
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WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 463 (1993); BLACK'S LAW
DICTIONARY 321 (9th ed. 2009) ("to cause or bring about by force, threats, or
overwhelming pressure."). Brown is notbeing forced, driven, impelled, threatened, or
pressured to advance money or fees. Although the recording may be important to his
defense, the State does not require him to obtain a copy. Brown is free to forego a copy
and may even access the 911 recording without paying money or a fee. Due process
affords a criminally accused defendant extensive discovery rights, but we know of no
principle requiring the State to bear the expense of copying discovery materials for a
nonindigent defendant.
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No. 31323-9-III
State v. Brown
CONCLUSION
The State holds no obligation to pay the costs of duplicating the 911 recording
sought by Daniel Brown. Therefore, we affirm the trial court's denial of Brown's motion
to suppress the recording or to dismiss the prosecution.
Affirmed.
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Fearinit'd )
WE CONCUR:
Kulik, J.
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