State of Washington v. Daniel Obadiah Batsell

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FILED
MAY 2, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33340-0-111
Appellant, )
)
V. )
)
DANIEL OBADIAHBATSELL, ) UNPUBLISHED OPINION
)
Respondent. )
SIDDOWAY, J. - After dismissing a charge of possession of methamphetamine
against Daniel Batsell for an asserted Brady 1 violation, the trial court had second thoughts
but doubted its authority to entertain a motion for reconsideration under CR 59. We need
not determine whether CR 59 applies in order to entertain the State's appeal of the trial
court's dismissal order. We reverse it; the appropriate remedy for the late discovery of
information in this case was a trial continuance.
1
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
No. 33340-0-111
State v. Batsell
FACTS AND PROCEDURAL BACKGROUND
On September 15, 2014, Daniel Batsell was placed under arrest on outstanding
warrants after he was encountered leaving a residence at 1107 West Yakima Street, to
which Pasco police officers had traveled in response to a suspicious circumstances call.
When Mr. Batsell was searched incident to the arrest by Officer Jeffrey Cobb, the officer
found a broken glass pipe containing traces of methamphetamine in the pocket of his
pants and a metal canister of methamphetamine in a small bag attached to a key chain he
had been carrying. A set of car keys was on the key chain. Mr. Batsell was charged with
possession of methamphetamine a couple of days later.
Mr. Batsell told his criminal defense lawyer that neither the car keys nor the
associated car were his, so in the months before trial, Mr. Batsell's lawyer tried to
identify the owner of cars at the residence at the time of his client's arrest. Mr. Batsell's
lawyer shared information about what he was looking for with the prosecutor in October.
In January 2015, Mr. Batsell's lawyer told the prosecutor he had hired an
investigator to try to find the owner of the car, who he believed was Mr. Batsell's friend
and could testify that the car keys found in Mr. Batsell's possession did not belong to
him. Mr. Batsell's lawyer asked the prosecutor for help locating the car's owner, but the
prosecutor responded that he was unable to conduct a records search with the limited
information provided and possessed no reports containing information about any
vehicles. In February, Mr. Batsell informed the prosecutor that the pants in which the
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glass pipe was found belonged to the same friend. The prosecutor again responded that
he did not have any information in his file to help locate the friend.
On March 17, the day before trial, Mr. Batsell's lawyer e-mailed the prosecutor at
2:30 p.m., advising him that Mr. Batsell thought there should be police reports related to
his case other than Officer Cobb's, which had been provided. The prosecutor received
the e-mail upon returning to the office at 4:00 p.m. He immediately searched the law
enforcement database for reports in which Mr. Batsell was named as an "involved other"
and found one that had been prepared by Officer Richard Leininger and described the
suspicious circumstances call that took police to the Yakima Street residence in the first
place. Clerk's Papers (CP) at 19. It revealed that after Officer Cobb arrested Mr. Batsell,
Officer Leininger contacted an individual named Joshua Ferris in the residence to which
officers responded and arrested him. Because the report stated that Mr. Ferris identified
Mr. Batsell as someone he knew and referred to the license plate number of a vehicle
located at the residence, the prosecutor provided the report to Mr. Batsell's lawyer
"within minutes." CP at 20.
The report disclosed that Mr. Ferris was at the Yakima Street residence and was
the individual who had called police to report suspicious circumstances. He told the
police dispatcher that a man named "Daniel Bates" was at the house earlier but had been
asked to leave, and was acting funny. CP at 38. Mr. Ferris told the dispatcher he had
armed himself with a shotgun while awaiting police.
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Officer Leininger prepared the police report and was evidently the first to arrive at
the Yakima Street residence, where he saw Mr. Batsell standing near a red car-
identified in the report by license number-attempting to get into it. Officer Leininger
ordered Mr. Batsell to get down; Mr. Batsell complied, and the report refers to the fact
that Mr. Batsell had outstanding warrants. Officer Leininger turned Mr. Batsell over to
Officer Cobb and Mr. Batsell's arrest was the subject matter of the separate police report
prepared by Officer Cobb.
Officer Leininger's report went on to discuss what he did after turning Mr. Batsell
over to Officer Cobb:
I knocked on the door and contacted Ferris. Ferris opened the door
and I noticed a shotgun that was disassembled and leaning near an old gun
cabinet. Ferris was extremely paranoid and told me he thought someone
was downstairs or in the room near the kitchen. The residence was littered
with shotgun shells and used hypodermic needles.
Ferris was detained for several warrants and the residence was
cleared.
Michelle Myer is apparently the homeowner, however she left the
house before we arrived. While clearing the residence, a large gun safe was
found downstairs in the house that contained several guns but was locked.
There are several hundred rounds of ammunition in the residence and
obvious signs of drug use including a broken meth pipe on the fridge.
Ferris told me he thought that Daniel was trying to set him up
because he is supposedly sleeping with another man's wife who lives in
Finley. Ferris was sure people were out to get him, and the alarming thing
is his attempts to load and assemble a shotgun while obviously high on
Meth.
Ferris was transported to FCCC for his warrants and Daniel was
booked on possession of Meth.
CP at 39-40.
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The morning after receiving Officer Leininger's report, Mr. Batsell's lawyer told
the prosecutor that the defense theory was that Mr. Ferris had been high and paranoid and
tried to set Mr. Batsell up. He asked the prosecutor to run the car's license plate to
determine ownership, which was done, revealing the car was not Mr. Ferris's, but was
instead owned by a Benjamin Freeman.
The same morning, at the outset of what was scheduled to be trial proceedings,
Mr. Batsell's lawyer moved for dismissal of the charge or to continue the trial based on
what he characterized as a Brady violation, telling the court the defense had been
searching for Mr. Ferris since the beginning of the case. He explained that the defense
theory was that Mr. Batsell borrowed Mr. Ferris's pants while helping Mr. Ferris move to
a rehab facility, and had been carrying Mr. Ferris's keys to load some of Mr. Ferris's
belongings into the red car. He argued that the fact that Mr. Ferris was under the
influence of methamphetamine when contacted by Officer Leininger supported the theory
that the methamphetamine belonged to Mr. Ferris. The lawyer explained that it was
because Mr. Batsell only knew Mr. Ferris as "Joshua" that they had needed police
assistance to locate him. Report of Proceedings (RP) (Mar. 18, 2015) at 2. He argued
that Officer Leininger's report, "if not exculpatory," was "relevant in that it would lead
[him] to be able to locate this witness and talk to him about these charges." Id. at 3.
The prosecutor responded that defense counsel had informed him that he was
looking for someone named Joshua, but he understood defense counsel had an
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investigator looking for the man. Until the final request on March 17, the prosecutor said
he assumed the defense had located Joshua.
The trial court found a Brady violation and dismissed the charge.
Eight days later, the prosecutor moved for reconsideration, relying on CR 59. In
addition to providing a supporting affidavit further explaining the history of his
communication with defense counsel, he argued there had been no Brady violation
because the government never withheld material information. He argued that a
continuance, not dismissal, would have been the appropriate remedy.
The defense responded that CR 59 does not apply in criminal matters, and that the
only remedy available to the prosecutor was to appeal the order of dismissal.
The trial court denied the motion to reconsider, explaining, "Primarily I'm not sure
ifl have the authority to do anything else." RP (Mar. 18, 2015) at 13. It added, "I will
indicate if I had this information set forth in the way [the prosecutor] set [it] forth I may
not have granted the dismissal at the time it happened. I didn't have it at the time." Id.
The State appeals.
ANALYSIS
Appealability a/Brady dismissal
Mr. Batsell raises a threshold issue of whether the Brady dismissal was effectively
appealed. The motion for reconsideration was not heard until May 4, 2015, and when it
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State v. Batsell
was denied the State appealed denial of that motion. Mr. Batsell argues that appeal of the
reconsideration decision does not bring dismissal of the criminal charge up for review.
It is not entirely clear whether a CR 59 motion to reconsider is permitted in a
criminal case. On the one hand, in Mark v. King Broadcasting Co., this court held that
"[w ]here in a procedural area a civil rule speaks and a criminal rule is silent, the civil rule
applies." 27 Wn. App. 344,349,618 P.2d 512 (1980), ajf'd on other grounds, 96 Wn.2d
473,635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S. Ct. 2942, 73 L. Ed. 2d
1339 (1982). In 1988, our Supreme Court cited Mark with approval, and stated "the civil
rules can be instructive in matters of procedure for which the criminal rules are silent."
State v. Gonzalez, 110 Wash. 2d 738, 744, 757 P.2d 925 (1988).
On other hand, in what appears to be the only published case that specifically
addresses CR 59's application in criminal cases, this court held that it does not apply.
See State v. Keller, 32 Wash. App. 135, 647 P.2d 35 (1982). It relied on the fact that, at the
time, "[ r]elief from judgments and orders in both civil and criminal cases is governed by
CR 60(b), which supersede[d] RCW 4.72.010." Id. at 139. Several years after Keller,
however, CrR 7.8 was adopted, so CR 60(b) can no longer be said to apply to criminal
cases. The criminal rules are silent on the type of relief provided by CR 59. While not
expressly addressing the propriety of the procedure, at least two reported decisions in
criminal appeals have involved motions for reconsideration without questioning CR 59's
application in criminal cases. See State v. Englund, 186 Wn. App. 444,459, 345 P.3d
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859, review denied, 183 Wash. 2d 1011, 352 P.3d 188 (2015); State v. Chaussee, 77 Wn.
App. 803, 806-07, 895 P.2d 414 (1995).
We need not determine whether CR 59 applies, because we hold that the State's
appeal presents the underlying Brady dismissal for our review. A timely motion for
reconsideration extends the 30 day deadline for filing a notice of appeal otherwise
provided by RAP 2.2(b)(4) to 30 days after entry of the order denying reconsideration.
RAP 5.2(e). While RAP 5.2(e) requires that the CR 59 motion be "timely," it does not
impose any other requirements as to its merits or viability. We liberally interpret the
rules on appeal to "promote justice and facilitate the decision of cases on the merits," and
because the State filed a timely motion for reconsideration, it was entitled to rely on the
rule. RAP 1.2(a).
Mr. Batsell argues that the State's notice of appeal designated only the order
denying reconsideration for review, however, and that RAP 2.4( c) provides that we
review final judgments not designated in a notice of appeal of a timely decision on a CR
59 motion only where the order denies a "posttrial motion." (Emphasis added.) Because
the Brady dismissal was a pretrial motion, he argues that RAP 2.4( c) does not permit
review.
"General rules of statutory construction are employed in application and
interpretation of rules promulgated by the Supreme Court, such as the Rules of Appellate
Procedure." State v. West, 64 Wash. App. 541, 544, 824 P.2d 1266 (1992). That includes
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State v. Batsell
determining the drafters' intent by examining an enactment as a whole and construing
related rules together. See id. RAP 5 .2(c) does not treat pretrial and posttrial motions for
reconsideration differently in extending the time to appeal the underlying decision. Mr.
Batsell offers no authority that holds (or any reasons we should hold) that orders on
pretrial and posttrial motions can both be appealed following reconsideration, but if the
notice of appeal designates the decision on reconsideration, then only decisions on
posttrial motions are reviewable. A reported decision holds otherwise: in Davies v. Holy
Family Hospital, 144 Wn. App. 483,492, 183 P.3d 283 (2008), the underlying decision
on a pretrial motion-a decision granting partial summary judgment-was deemed
reviewable under RAP 2.4(c) notwithstanding that the underlying decision was not
identified in the notice of appeal. Given a commonsense reading, RAP 2 .4(c)' s reference
to "posttrial motion[s]" simply reflects that fact that most CR 59 motions covered by the
two rules will deal with underlying motions that were brought after trial. The trial court's
order dismissing Mr. Batsell's criminal charge is before us for review.
Continuance, not dismissal, was the appropriate remedy
The State contends the trial court erred when it dismissed the charge against Mr.
Batsell under CrR 8.3(b ), which authorizes trial courts to dismiss a criminal prosecution
"due to arbitrary action or governmental misconduct when there has been prejudice to the
rights of the accused which materially affect the accused's right to a fair trial." To
succeed in such a motion, the defendant must prove both governmental misconduct and
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prejudice to his right to a fair trial by a preponderance of the evidence. State v. Rohrich,
149 Wash. 2d 647, 654, 71 P.3d 638 (2003). We review a trial court's decision to dismiss a
criminal prosecution for abuse of discretion. State v. Wilson, 149 Wash. 2d 1, 9, 65 P.3d
657 (2003).
The governmental misconduct alleged here was that the prosecutor suppressed
Officer Leininger's police report in violation of Brady, which recognized an affirmative
duty on the part of the State to disclose evidence that is favorable to a defendant. Brady,
373 U.S. at 87. An asserted Brady violation is reviewed de novo. State v. Autrey, 136
Wn. App. 460,467, 150 P.3d 580 (2006).
The State makes viable arguments that no Brady violation occurred but this case is
most easily resolved on the basis that the draconian remedy of dismissal under CrR 8.3(b)
would be an abuse of discretion even if there was a Brady violation. At the time he made
his motion, Mr. Batsell had received Officer Leininger's report and his own lawyer raised
the possibility of a continuance as an alternative remedy.
Brady violations are most commonly raised after conviction as a basis for a new
trial; they seldom warrant dismissal. The United States Court of Appeals for the District
of Columbia has summarized the postconviction remedy analysis for a Brady violation as
follows:
(1) a Brady violation requires a remedy of a new trial; (2) such new trial
may require striking evidence, a special jury instruction, or other additional
curative measures tailored to address persistent prejudice; and (3) if the
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lingering prejudice of a Brady violation has removed all possibility that the
defendant could receive a new trial that is fair, the indictment must be
dismissed. To be sure, dismissal is appropriate only as a last resort, where
no other remedy would cure prejudice against a defendant.
United States v. Pasha, 797 F.3d 1122, 1139 (D.C. Cir. 2015) (emphasis added).
Our Supreme Court has held that "before a trial court should exercise its discretion
to dismiss a criminal prosecution, a defendant must prove that it is more probably true
than not true that (1) the prosecution failed to act with due diligence, and (2) material
facts were withheld from the defendant until shortly before a crucial stage in the litigation
process, which essentially compelled the defendant to choose between two distinct
rights," those being the defendant's "' right to a speedy trial, or his right to be represented
by counsel who has had sufficient opportunity to adequately prepare a material part of his
defense.'" State v. Woods, 143 Wash. 2d 561, 582-83, 23 P.3d 1046 (2001) (quoting State
v. Price, 94 Wash. 2d 810, 814, 620 P.2d 994 (1980)).
This Price/Woods standard was not addressed by Mr. Batsell's lawyer when he
moved for dismissal nor was it the standard applied by the trial court. It is doubtful that
the State failed to act with due diligence. The information contained in Officer Cobb's
police report did not mention Joshua, provide any identification of a car at the scene, or
suggest that any other officer present either arrested someone else or would have had
occasion to prepare an additional report. While Mr. Batsell's lawyer asked for help
locating Joshua or the car, he did not inform the prosecutor until the day before trial that
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his client believed there must be another police report, and the database consulted by the
prosecutor contained hundreds of reports identifying Mr. Batsell as an "involved other."
Once asked about another report, the prosecutor acted quickly to locate and provide it.
Even more clearly, the court never considered whether the State's actions had
compelled Mr. Batsell to choose between his right to a speedy trial and the right to be
represented by adequately prepared counsel. 2 No consideration was given to the amount
of additional time his lawyer would need to prepare, having been provided with Mr.
Ferris's name, and with the identities of the owner of the Yakima Street home and the red
car. A trial court abuses its discretion if its decision rests on facts unsupported in the
record or is reached by applying the wrong legal standard. State v. Gentry, 183 Wash. 2d
749, 764, 356 P.3d 714 (2015).
The order of dismissal is reversed and the case remanded.
A majority of the panel has determined this opinion will not be printed in the
2
At a hearing on January 20, defense counsel stated he was looking for a witness
associated with the car and the keychain but was not asking to move the trial date because
"I believe I can contact this person and get a statement from him and get a statement to
[the prosecutor] regarding this matter." RP (Jan. 6, 2015) at 3. On February 3, he told·
the court "[ w ]e are actively trying to find two witnesses that were at the residence at the
time this alleged offense occurred" but still expected to be ready for trial. Id. at 4.
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Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Fearing,
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