State v. Rempel

• Decision Date: 08 February 1990
• Docket Number: No. 56161-3,56161-3
• Citation: 114 Wn.2d 77,785 P.2d 1134
• Parties: STATE of Washington, Respondent, v. Dale D. REMPEL, Petitioner.
• Court: Washington Supreme Court

Page 77

114 Wn.2d 77

785 P.2d 1134

STATE of Washington, Respondent, v. Dale D. REMPEL, Petitioner.

No. 56161-3.

Supreme Court of Washington En Banc.

Feb. 8, 1990.

Washington Appellate Defender, Julie A. Kesler, Seattle, for petitioner.

Seth Dawson, Snohomish County Prosecutor, Seth Aaron Fine, Deputy, Everett, for respondent.

BRACHTENBACH, Justice.

There are two issues: (1) Is the evidence sufficient to support defendant's conviction of tampering with a witness, RCW 9A.72.120; and (2) should the petition for review be dismissed when defendant has served his time, his whereabouts is unknown, he has not reported to a community corrections officer after release as ordered, and a bench warrant has been issued for his arrest?

Defendant was convicted of criminal trespass, second degree attempted rape, and tampering with a witness. The Court of Appeals affirmed. State v. Rempel, 53 Wash.App. 799, 770 P.2d 1058 (1989). Defendant challenges only the witness tampering conviction in the petition for review. We reverse.

Before reciting the facts and reaching the merits, we consider whether to dismiss the petition for review. In its answer to the petition, the State urges that we not consider this matter on the grounds that the defendant has waived his right to review by his disappearance and by being subject to an unexecuted bench warrant for arrest.

It has long been the rule that when a defendant flees the jurisdiction pending appeal he thereby waives his right to prosecute the appeal, unless within a time fixed he surrenders himself into custody of the proper officer or gives bail for his appearance. State v. Handy, 27 Wash. 469, 67 P. 1094 (1902). In State v. Mosley, 84 Wash.2d 608, 610, 528 P.2d 986 (1974), we explained that if the conviction is affirmed, defendant is unlikely to appear to submit to his sentence. If a new trial is ordered, defendant may or may not choose to appear.

In Mosley, the argument was made that the general rule might be subject to modification if the challenge were to the sufficiency of the evidence thereby obviating the necessity of a new trial. The facts in Mosley did not require resolution of the issue. The facts in this case, however, raise the issue. We conclude that we will consider whether the defendant's challenge is to the sufficiency of the evidence in deciding whether to exercise our discretion to review a case despite the defendant's having fled the jurisdiction.

We decline, however, to adopt a blanket rule which would entitle a defendant who has fled the jurisdiction to pursue an appeal in all cases where the sufficiency of the evidence is challenged. Rather we will exercise discretion on a case to case basis while strongly affirming the general rule. State v. Koloske, 100 Wash.2d 889, 676 P.2d 456 (1984); State v. Johnson, 105 Wash.2d 92, 711 P.2d 1017 (1986); State v. Ortiz, 113 Wash.2d 32, 33, 774 P.2d 1229 (1989).

We will review the substantive issue in this case. We note that because the challenge is to the sufficiency of the evidence, our decision will not require retrial. Moreover, our decision will not affect whether defendant chooses to submit to proper authority. Defendant has served his time on three convictions, two of which he does not now challenge. The sentences on the three charges were concurrent. According to the record, the sole basis for issuance of the bench warrant was defendant's failure to report as ordered to his assigned community corrections officer after release from custody.

We have recognized a second reason underlying the general rule: a defendant who has fled the jurisdiction should not be entitled to review, having scorned the court's authority over him. Ortiz, at 34, 774 P.2d 1229. Despite our disapproval of defendant's failure to report, however, our fundamental disagreement with the Court of Appeals' analysis, discussed hereafter, warrants our review.

Turning to the facts in this case, defendant and Diane DuBois had been friends for some years; they had been intimate once early in their acquaintanceship. In December 1986, defendant stayed at DuBois's apartment while she was out of town. Upon her return, defendant stayed on. Defendant resisted DuBois's attempts to have him move out. Defendant testified that he wanted to marry her and that they had a sexual relationship throughout his stay; DuBois denied this. On the night of February 18, 1987, the events occurred which led to defendant's convictions; defendant and DuBois offered different versions of the events, but the jury believed that defendant attempted to rape DuBois. The police were called; defendant and DuBois were struggling when the police arrived. Defendant was arrested.

That same evening defendant called DuBois from jail. DuBois accepted the collect call, but hung up without talking to defendant.

Over the next 4 days, defendant called DuBois many times, but she accepted only two or three of the collect calls. Those two or three telephone calls constitute all the evidence about tampering with the potential witness, DuBois.

All of the relevant testimony from the State's case on the tampering charge is as follows:

Q When he called, say, the first time after that night, the first time, do you remember anything that he said?

A Yeah.

Q Tell me.

A I--that he was sorry.

Q Excuse me?

A That he was sorry.

Q Anything else?

A That he'd never do it again, that it was going to ruin his life. I don't know.

Q Did he ask you to do anything for him?

A Yes, he asked me to drop the charges.

Q What was your response to that?

A I told him I didn't have any control over it, you know, at that--you know, as far as I knew that the policemen had already filed their report. They had taken him to jail, that there wasn't anything I could do about the whole thing.

Q Were you willing to do that if you could?

A No.

Q Why not?

A Because he was wrong. He did something wrong.

. . . . .

Q How many times do you think you actually talked to him?

A I don't know. Maybe two, three times maybe.

Q Was there--How about any of the other phone calls other than that first one, do you remember anything else that was said?

A It was--it's pretty much the same things each time that I did talk to him. I told him--it was pretty much the same things every time.

Q Which is--

A That he was sorry, you know, "Don't ruin my life," you know, "I didn't mean it." That kind of thing.

Q Did getting those phone calls concern you?

A He was in jail so it didn't really, you know. I didn't worry about those, no, I mean other than the fact that he was a real nuisance.

Q Did he ask you again after that first phone call to drop charges?

A Yes.

Verbatim Report of Proceedings, at 79-80.

Q And the content of those conversations when you talked to him were basically the same thing over and over again, that he was sorry, that this was going to ruin his life, that he didn't mean it, those kinds of things?

A Right.

Q Okay. And you weren't worried about the calls except that they were a nuisance?

A Right.

Q And they weren't going to affect in any way what you were going to do?

A (Witness shaking head.)

Verbatim Report of Proceedings, at 97-98.

Defendant's version of the phone calls was that he asked DuBois why she was "charging me with what she was charging me" because "I hadn't done it." Defendant said he never threatened her or asked her to withhold testimony. Verbatim Report of Proceedings, at 174-75.

Defendant's challenge is to the sufficiency of the evidence. The standard of review is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)); accord, e.g., State v. Aver, 109 Wash.2d 303, 310-11, 745 P.2d 479 (1987); State v. Guloy, 104 Wash.2d 412, 417, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986).

For our purposes the essential elements of the crime are that defendant attempted to induce a witness to withhold any testimony. The entire statute is set out in the footnote ¹, but defendant was charged with, and the jury instructed on, the indicated elements. We conclude that the evidence and reasonable inferences do not meet the test that any rational trier of fact could have found beyond a reasonable doubt that defendant attempted to induce DuBois to withhold testimony.

The sum of the defendant's attempts are an apology, a statement that "it" was going to ruin his life, and a request that DuBois "drop the charges." The literal words do not contain a request to withhold testimony. The defendant's words contain no express threat nor any promise of reward. The words "drop the charges" reflect a lay person's perception that the complaining witness can cause a prosecution to be discontinued. Defendant maintained this belief even after DuBois told him that she did not have any control over the matter. ("They had taken him to jail, that there wasn't anything I could do about the whole thing." Verbatim Report of Proceedings, at 79-80.)

However, an attempt to induce a witness to withhold testimony does not depend only upon the literal meaning of the words used. The State is entitled to rely on the inferential meaning of the words and the context in which they were used. State v. Scherck, 9 Wash.App. 792, 514 P.2d 1393 (1973). Here the State urges us to consider the underlying assaultive nature of the crime. We do so, but we consider the entire context in which the words were used, which also includes the prior relationship between defendant and DuBois, and her reaction to the phone calls. The entire context negates any inference that the request to "drop the charge" was in fact an inducement to withhold testimony from a later trial. DuBois testified that the calls did not concern...