State Of Washington v. Jennifer Leigh Youde

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
) No. 68058-7-1 f*o o
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Appellant, 1—*CZ
) DIVISION ONE —**.
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JENNIFER LEIGH YOUDE, ) PUBLISHED OPINION \'i •*••»-,
Respondent. ) FILED: May 20, 2013 S9
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Becker, J. — This case involves a prosecution for delivery of marijuana.
The investigating agency was the police department of the Tulalip Tribes. The
Tribes asserted sovereign immunity in response to a defense subpoena for
information the Tribes deemed immaterial. Recognizing that a sovereign entity is
not subject to compulsory process, the superior court quashed the subpoena.
The court then granted the defendant's motion to dismiss the prosecution under
CrR 8.3(b). The State appeals the dismissal. We hold the court abused its
discretion by dismissing the case without first determining whether the
subpoenaed information was material. Because the record does not support a
finding of materiality, we reverse the order of dismissal.
No. 68058-7-1/2
Jennifer Youde advertised on Craigslist, an online forum for goods and
services, as a seller of medical marijuana. Detective Wayne Schakel, an
undercover police officer of the Tulalip Tribes, responded to the ad by requesting
a delivery. Youde delivered marijuana to him on February 6, 2010, and was
immediately arrested by tribal officers. The arrest occurred on the Tulalip Indian
Reservation. Youde's car was searched and seized pursuant to a warrant issued
by the tribal court. The Tribes later forfeited Youde's car pursuant to tribal law.
"Indian tribal courts do not have inherent jurisdiction to try and punish non-
Indians who commit crimes on their land. Instead, criminal offenses occurring on
a reservation by non-Indians are subject to prosecution by state or federal
governments, depending on the offense." State v. Schmuck, 121 Wn.2d 373,
379, 850 P.2d 1332 (citation omitted), cert, denied. 510 U.S. 931 (1993).
Because Youde is non-Indian, Detective Schakel referred the criminal charge of
possession of a controlled substance to the Snohomish County Prosecutor to
make a charging decision.
On March 11, 2011, the State filed an information in Snohomish County
Superior Court charging Youde with delivery of a controlled substance, a felony.
The Tulalip Police Department was listed in the information as the "originating
agency."
Detective Schakel is cross commissioned with the Snohomish County
Sheriff's Department, the Federal Bureau of Investigation, and the United States
No. 68058-7-1/3
Marshal. According to Detective Schakel's declaration, the investigation began
in January 2010, after Tulalip Police received a tip that someone was selling
drugs on the reservation and advertising on Craigslist.
Detective Schakel, who was asked to follow up on the tip, found an ad on
Craigslist posted by Youde. The advertisement was captioned, "Need Medical
MJ? - $420 (Mt Vernon to Olympia)." The advertisement read in part:
If you use medical marijuana and would like a competent, friendly
delivery, please email me. I deliver anywhere between Arlington
and Olympia two to four times a week. ... I don't mind meeting in a
convenient place for you. Medicine is free. Donation is accepted
for my time. Donation request listed below. I will never short you
on your meds.
Detective Schakel contacted Youde with an e-mail that said, "Just saw
your ad, are you delivering today? I'd like to try some Kush for a change. What
are your donation rates?" Youde suggested a meeting in Marysville. After
several exchanges of e-mails, the meeting eventually occurred on February 6,
2010, near a bank in Marysville that is located on the Tulalip Reservation. Youde
handed the undercover officer six grams of marijuana in exchange for $90,
without making any effort to verify that he was qualified as a medical user. This
exchange was the basis for the charge of delivery.
On August 10, 2011, Youde filed a request for discovery from the Tribes
pursuant to CrR 4.7(d). This section of the criminal discovery rule sets forth the
prosecutor's responsibility to assist a defendant in obtaining material held by
others which "would be discoverable if in the prosecutor's control." The request
No. 68058-7-1/4
asked the Snohomish County Prosecutor to attempt to obtain (1) the telephonic
application for the search warrant, (2) Tulalip police department policies
regarding "buy/bust" operations in general, and "specifically the targeting of
individuals who provide medical marijuana," and (3) written and electronic
communications among members of the tribal police department, and between
members of that department and the Tribes' legal department, "in regards to
medical marijuana and its status on tribal lands."
The prosecutor was unable to obtain the requested materials. On August
26, 2011, on Youde's motion and without opposition from the State, the trial court
issued a subpoena duces tecum for the requested materials, directed to the
Tribes' legal representative.
Through their prosecutor, the Tribes formally objected that there were no
materials responsive to the first and second parts of the request. The Tribes said
that the audio recording of the telephonic warrant application was no longer
available due to an office relocation in the summer of 2010, and the only police
department policy regarding "buy/bust" operations pertained to the use of
confidential informants.
As to the third category in the subpoena, the Tribes objected to the
production of attorney-client privileged communications and further objected that
the production of internal law enforcement communications was unduly
burdensome, likely to compromise other police investigations, and unlikely to
No. 68058-7-1/5
lead to admissible evidence. In addition, and of chief significance to this case,
the Tribes objected that the request "exceeds the scope of permitted discovery
under CrR 4.7 and fails to meet the discretionary disclosure standards of
materiality under Cr.R 4.7(e)(1)."
Responding to the Tribes' objections, Youde explained why she viewed
the requested information as material. She said she was considering asserting a
"somewhat hybrid defense" combining elements of the medical marijuana statute
and entrapment. She explained that under the statute as it existed at the time of
her arrest, a person acting as a "designated provider" of medical marijuana could
not be found guilty of a crime for assisting a "qualifying patient" with the medical
use of marijuana. See former RCW 69.51A.005 (2007). Because the
undercover officer was not in reality a qualifying patient, Youde conceded she
could not rely solely on the statute to show she was not guilty of a crime.
Instead, she explained, she might have to rely upon an entrapment defense.
That is, she would show that she would not have provided medical marijuana to
the officer "in the absence of her belief that he was a medical marijuana patient
requesting that she be a provider of medical marijuana, actions that are legal in
Washington State." Youde hypothesized that the Tribes deliberately lured her
onto tribal lands so she would not have the protection afforded by state law to
providers of medical marijuana:
In this case the Tulalip Tribe, a sovereign nation, elected to target
an individual who was acting within the laws of our state, lure her
No. 68058-7-1/6
onto Tribal Lands, and then arrested her and seized and forfeited
her car. In presenting a defense of entrapment, the defendant must
be allowed to investigate whether the Tulalip Police acted to
specifically target medical marijuana providers and what motivated
such action.
It was the Tribe that chose to seek out a medical marijuana
provider and use subterfuge in an attempt to either push that
provider's conduct outside the protections of the Medical Marijuana
statute or, perhaps, in an effort to bring that provider onto tribal
lands, where the tribe may believe Washington's Medical Marijuana
laws have no power. That is why it is not only communications
between members of the Tribal Police Department, but also the
Tribal Legal Department, that are relevant to the defense in this
case, and must be disclosed.
On September 23, 2011, the superior court held a hearing on the Tribes'
objections to the subpoena. With respect to the internal communications
requested in the third part of the subpoena, the Tribes argued that an entrapment
defense would not be viable given the facts of the case. The Tribes
acknowledged making no effort to determine whether or not documents
responsive to the subpoena existed because the information was considered by
the Tribes to be immaterial. Finally, the Tribes stated that ifthe court ruled that
the information sought was material and the Tribes was obliged to produce it, the
Tribes was reserving the right to assert sovereign immunity:
the Tribes has not made an effort to determine if these documents
exist because the documents are so far outside the scope of what
is material under 4.7 that there should be no obligation to do so.
And, your Honor, Ithink it's important to articulate for the
court that the Tribes, particularly through the police department,
wants to ensure that the Snohomish County Prosecutor's Office is
able to meet all of its legal and ethical obligations under 4.7. And
all the discovery that the department has was provided through the
prosecutor's office in the normal course.
No. 68058-7-1/7
Now there's an additional issue that I'd like to reserve time to
address should the court take the position that there's - that there
is a basis to respond to this subpoena, that the materials sought
are not only material, but ones that the Tribes has an obligation to
answer, and that argument is based on the principle of immunity.
But I would simply reserve that issue at this time and address it
should it be necessary with the court.
The court asked for supplemental briefing on sovereign immunity. The
Tribes first repeated the argument that the information sought was immaterial but
argued alternatively that the subpoena should be quashed in its entirety because
the court lacked jurisdiction over the Tribes. The Tribes asserted that the Tulalip
Tribal Court was the court with jurisdiction to issue such a subpoena.
Youde argued she had a constitutional right to investigate possible
defenses and the requested materials were within the scope of discovery. She
also contended the Tribes had implicitly waived sovereign immunity by entering
into a cooperative law enforcement agreement with Snohomish County.
On October 10, 2011, after reviewing the cooperative agreement, the
superior court issued an order quashing the subpoena. The court concluded the
Tribes had not waived sovereign immunity: "Nowhere in this agreement do the
Tribes either expressly or implicitly waive their right to control the policies and
procedures of either their Police agency or Legal Department.. . . The mere fact
that the Tribes and the County have chosen to share jurisdiction of the
prosecution of crimes does not confer any implied waiver of sovereign immunity
on the part of the Tribes." The court found that the Tribes' invocation of
No. 68058-7-1/8
sovereign immunity was "dispositive of the issues before the Court.. . . Because
the Tribes have successfully invoked sovereign immunity, there is no need to
address any of the other issues raised by either party."
The order quashing the subpoena on the basis of sovereign immunity has
not been appealed. It is well established that a waiver of sovereign immunity
must be unequivocally expressed; it cannot be implied. Ecl, United States v.
Testan. 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976).
On November 15, 2011, Youde filed a motion to dismiss pursuant to CrR
8.3(b). She maintained that the information sought was material to a potential
defense of entrapment. She said, "The State may argue that Ms. Youde is not
going to prevail on an entrapment defense. But that is entirely beside the point,
as Ms. Youde is being prevented from even investigating that defense." The
State responded that the assertion of sovereign immunity was not arbitrary action
or governmental misconduct and that the extraordinary remedy of dismissal
should not be granted because Youde had failed to show material prejudice to
her right to a fair trial.
On November 18, 2011, the court heard arguments on the motion to
dismiss. In an oral ruling granting the motion, the court concluded that allowing
the State to proceed in the face of an assertion of sovereign immunity by the
investigating agency would violate due process and deny Youde the opportunity
to develop a defense:
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No. 68058-7-1/9
[Tribal police] requested that the State prosecute her as a
Washington State case. The alternative would have been to seek
prosecution by the US Attorney in Federal Court.
The Tribes had a choice here of providing the information
necessary to this defense so the defense could determine if it had
an affirmative defense to the case. They didn't do that. Instead,
they asserted sovereign immunity.
I think then it becomes a constitutional issue, a due process
issue here. It rises to constitutional levels. I think it's a violation of
due process here at this point to allow the State to proceed when
the Tribes who developed the case and requested prosecution has
asserted sovereign immunity as a reason not to provide the
requested discovery.
At the same time, I think it's denial of effective assistance of
counsel if counsel can't then build his defense or seek to build a
defense in this case because the Tribes has denied them.
The order of dismissal was consistent with the oral ruling: "It is hereby ordered
that the assertion of sovereign immunity by the investigating law enforcement
agency is equivalent to governmental misconduct as it denies due process and
effective assistance of counsel, and the motion is granted and case dismissed."
The State appeals the order of dismissal. The State contends dismissal
was unwarranted because Youde did not articulate a material basis for her
request for the Tribes' internal communications. Youde responds that the
"selective invocation of sovereign immunity" by the Tribes short-circuited her right
to investigate a possible defense.
CrR 8.3(b) provides:
The court, in the furtherance of justice, after notice and hearing,
may dismiss any criminal prosecution due to arbitrary action or
governmental misconduct when there has been prejudice to the
rights of the accused which materially affects the accused's right to
a fair trial. The court shall set forth its reasons in a written order.
No. 68058-7-1/10
The trial court's power to dismiss is discretionary and is reviewable only
for manifest abuse of discretion. Discretion is abused when the trial court's
decision is manifestly unreasonable, or is exercised on untenable grounds, or for
untenable reasons. State v. Blackwell. 120 Wn.2d 822, 830, 845 P.2d 1017(1993).
The State contends the court abused its discretion because Youde has
shown neither (1) arbitrary action or governmental misconduct, nor (2) prejudice
affecting her right to a fair trial.
The assertion of sovereign immunity by an investigating agency in a
criminal case is not unique to tribes. A state court cannot enforce a state
subpoena issued to an agent of the Federal Bureau of Investigation, for example,
even if the withholding of the information means the state court must then grant a
defendant's motion to dismiss. F.B.I, v. Superior Ct. of Cal., 507 F. Supp. 2d
1082, 1087-88, 1094 (2007). For the purpose of our analysis under CrR 8.3(b),
we will assume the terms "arbitrary action" and "governmental misconduct" are
appropriate labels for the State's insistence on proceeding with a prosecution
despite the refusal by another sovereign to disclose material information.
But Youde has cited no cases, and we have found none, where a
dismissal has been affirmed because a police agency—with or without sovereign
immunity—defies a subpoena for information that is immaterial. Under CrR
8.3(b), the accused must show material prejudice before a motion to dismiss is
10
No. 68058-7-1/11
granted. To establish a right to discovery, a defendant "must advance some
factual predicate which makes it reasonably likely the requested file will bear
information material to his or her defense." Blackwell, 120 Wn.2d at 830.
The trial court went straight to constitutional issues without ruling on the
materiality of the request for the Tribes' internal communications. In part, the
court reasoned that it is fundamentally unfair for an investigating agency of
another sovereign to submit a case for prosecution without waiving sovereign
immunity. ("I think it's a violation of due process here at this point to allow the
State to proceed when the Tribes who developed the case and requested
prosecution has asserted sovereign immunity as a reason not to provide the
requested discovery.") We have found no authority in the criminal rules or
elsewhere for holding that a criminal case must be dismissed whenever
sovereign immunity is asserted by the entity that developed the case or
requested prosecution.
The more substantial question is whether the State violated Youde's
constitutional rights by exposing her to continued prosecution under
circumstances where the court could not protect her right to compulsory process.
The right to compulsory process is "in plain terms the right to present a
defense .... This right is a fundamental element of due process of law."
Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).
The right to effective assistance of counsel is guaranteed by the Sixth
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No. 68058-7-1/12
Amendment. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Effective assistance of counsel includes an attorney's
duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. In re Pers. Restraint of Davis, 152
Wn.2d 647, 721, 101 P.3d 1 (2004). "The defendant's interest in fully
investigating every possible defense to the charges leveled against him is not to
be lightly denied." State v. Gonzalez, 110 Wn.2d 738, 748, 757 P.2d 925 (1988).
Generally speaking, the scope of discovery under the criminal rules is within the
trial court's sound discretion. State v. Yates. 111 Wn.2d 793, 798, 765 P.2d 291(1988). The trial court is to regulate discovery in a manner which will insure a fair
trial to all concerned. Yates. 111 Wn.2d at 799.
We do not hesitate to say that a trial court's decision to dismiss a criminal
prosecution would be upheld in accord with these principles where, by an
assertion of sovereign immunity, a defendant was prevented from obtaining
material information in the hands of a third party not subject to the court's power.
Indeed, the State acknowledges that the assertion of sovereign immunity can
justify dismissal of a criminal case if it prevents the defendant from receiving a
fair trial. A violation of the defendant's constitutional right to counsel and the right
to compulsory process is presumed to be prejudicial. State v. Burri, 87 Wn.2d
175, 181, 550 P.2d 507 (1976). IfYoude had stated a predicate for the possible
materiality of the files, and the Tribes had declined to provide them at least for in
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No. 68058-7-1/13
camera review, dismissal would be justified. An accused cannot be left to defend
herself in a court that is unable to enforce discovery orders for material
information.
The problem for Youde is that she has not stated a predicate for the
possible materiality of the files. She contends the materiality of the requested
items was conclusively settled when the court issued a subpoena for them and
the State did not object. But she cites no authority for the proposition that the
State must object to a subpoena at the time a court issues it in order to preserve
the issue of materiality. The issuance of the subpoena did not estop the trial
court from reconsidering the materiality of the requested information once the
Tribes objected to producing it. The State timely argued the requested discovery
was immaterial in connection with the motion to dismiss.
Youde claimed below that the requested information was relevant to a
"somewhat hybrid" defense involving both the medical marijuana statute and the
affirmative defense of entrapment. She did not spell out how a jury would be
instructed on such a defense. On appeal, she argues only that her investigation
was aimed at a potential defense of entrapment.
The defense of entrapment is provided by statute:
(1) In any prosecution for a crime, it is a defense that:
(a) The criminal design originated in the mind of law
enforcement officials, or any person acting under their direction,
and
(b) The actor was lured or induced to commit a crime which
the actor had not otherwise intended to commit.
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No. 68058-7-1/14
(2) The defense of entrapment is not established by a
showing only that law enforcement officials merely afforded the
actor an opportunity to commit a crime.
RCW9A. 16.070.
Youde suspects the police set up the transaction to occur on tribal land
because they believed a delivery of marijuana would be illegal there even if it
would be innocent elsewhere in Washington under the medical marijuana statute.
It is possible the requested materials would reveal such a belief. Possibly, the
Tribes' internal communications would even document a deliberate scheme of
arranging for sellers to make deliveries in a location where the Tribes would have
jurisdiction to initiate forfeiture actions. We therefore will assume the
subpoenaed information could be material to the first prong of an entrapment
defense: that the idea of steering Youde to a particular location was a design
that "originated in the mind" of tribal law enforcement officials.
However, on this record, Youde fails to demonstrate any possibility of
proving that the subpoenaed information could be material to the second prong:
that tribal police lured or induced her to commit a crime she had no intention of
committing. Where the police merely give a defendant an opportunity to commit
a crime by employing a ruse, entrapment is not established. RCW 9A.16.070;
State v. Smith, 93 Wn.2d 329, 350, 610 P.2d 869, cert denied. 449 U.S. 873(1980). Delivering marijuana was plainly Youde's intention. The undercover
operation, through a ruse, merely gave her an opportunity to deliver it.
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No. 68058-7-1/15
On this record and at this point in the case, there is no reason to believe
that the gap in proof of the second prong of an entrapment defense would be
filled by information about the motives or beliefs that led tribal law enforcement to
target sellers like Youde. Therefore, we conclude the requirement of materiality
in CrR 8.3(b) was not satisfied when the court granted the motion to dismiss.
Following Blackwell, we hold that a trial court must determine that
requested discovery is material before granting a motion to dismiss based on the
unavailability of compulsory process. Here, the trial court did not make that
determination. And the record lacks a colorable showing by Youde that the
requested materials could make entrapment a viable defense. We conclude the
State may proceed with the prosecution of Youde.
The order of dismissal is reversed.
S?