State Of Wash. v. Bashaw

• Court: Washington Supreme Court
• Writing for the Court: OWENS, J
• Citation: State v. Bashaw, 169 Wash.2d 133, 234 P.3d 195 (Wash. 2010)
• Decision Date: 01 July 2010
• Docket Number: No. 81633-6.
• Parties: STATE of Washington, Respondent,v.Bertha Iola BASHAW, Petitioner.

169 Wash.2d 133

234 P.3d 195

STATE of Washington, Respondent,v.Bertha Iola BASHAW, Petitioner.

No. 81633-6.

Supreme Court of Washington En Banc.

Argued Sept. 17, 2009.

Decided July 1, 2010.

COPYRIGHT MATERIAL OMITTED

David N. Gasch, Gasch Law Office, Spokane, WA, for Petitioner.

Shadan Kapri, Stevens County Prosecutor's Office, Colville, WA, for Respondent.

OWENS, J.

¶ 1 Bertha Bashaw was convicted of three counts of delivery of a controlled substance. Because the jury determined that each offense occurred within 1,000 feet of a school bus route stop, her maximum sentence was doubled by statute. Bashaw argues that distance measurements of a mechanical device were improperly admitted because the State failed to demonstrate that the device functioned reliably. Bashaw further contends that the jury instructions incorrectly required unanimity for a finding that her actions did not take place within 1,000 feet of the school bus route stop. We agree with both of Bashaw's arguments, though we find the improper admission of the results harmless with respect to two of the sentence enhancements. Because the instructional error was not harmless, however, we reverse all three sentence enhancements and remand the case to the trial court for further proceedings consistent with this opinion.

FACTS

¶ 2 In July 2007, the State charged Bashaw with three counts of delivery of a controlled substance based on three separate sales to a police informant. The State also sought a sentence enhancement, pursuant to RCW 69.50.435(1)(c), based on its allegation that each sale took place within 1,000 feet of a school bus route stop. That enhancement allows for imprisonment of up to twice the period otherwise authorized. Count I was alleged to have occurred on May 11, 2006, some distance south of the former Vaagen Mill's parking lot. Counts II and III were alleged to have occurred on May 23 and May 31, 2006, respectively, in the parking lot of the former mill.

¶ 3 At trial, witness testimony established the locations of the school bus route stops and the drug transactions. Dan Chaplik, superintendent of the Republic School District, testified to the locations of two school bus route stops in the area. One was in the “main driveway” of the old mill site, which was located in the parking lot, while the other was across the street and slightly to the south of the parking lot. 1 Transcript of Trial (TR) at 53, 56. Detective Jan Lewis testified that he returned to the locations of the transactions and measured the distance from each location to the nearest school bus route stop. All three drug transactions took place in the vicinity of the same two school bus route stops. To measure the distances, Detective Lewis used what he described as “[o]ne of those rolling wheel measurers you can zero out and roll along ahead of you and it counts out feet.” 2 TR at 176. Detective Lewis further testified that he borrowed the particular device from the Republic Police Department and that he had not used it before, though he had used similar devices. Such devices, according to Detective Lewis, are commonly used by law enforcement. After Detective Lewis pressed a button to zero out the numbers, he measured the distance from each transaction location to the school bus route stop.¹ At trial, Bashaw objected to the admission of the results of the measuring device based on a lack of foundation. The trial judge overruled the objection, and Detective Lewis testified that, based on his measurements, the distance from the location of the first sale to the school bus route stop was 924 feet and the distances from the locations of the second and third transactions to the school bus route stop were each 100 to 150 feet. This was the only testimony directly addressing the distance between the transactions and the school bus route stop.

¶ 4 The transcript also reveals additional testimony about the relevant locations from which distance might be inferred. Detective Lewis estimated that the distance from the parking lot entrance to the end of the former mill's parking lot was no more than 150 feet. Additionally, four other witnesses, including the confidential informant and three other law enforcement personnel, testified to the locations of the drug transactions and the distance from the parking lot to the location of the transaction alleged in count I. As to this distance, Detective Donald Redfield estimated the distance to be one-tenth of a mile (528 feet) while Detectives Steve Brown and Armondo Moralez, as well as the confidential informant, estimated the distance to be one-quarter of a mile (1,320 feet).

¶ 5 Because the State sought a sentence enhancement, the jury was given a special verdict form for each charge. The form asked the jury to make a special finding of whether each charged delivery took place within 1,000 feet of a school bus route stop. In the jury instruction explaining the special verdict forms, jurors were instructed: “Since this is a criminal case, all twelve of you must agree on the answer to the special verdict.” Clerk's Papers at 95. On appeal, Bashaw challenges this instruction as contrary to precedent from this court.

¶ 6 The jury found Bashaw guilty of all three counts of delivery of a controlled substance and found that each had taken place within 1,000 feet of a school bus route stop. The latter finding increased Bashaw's maximum sentence from 24 months to 48 months. The trial judge sentenced Bashaw to 36 months' imprisonment. Bashaw appealed the sentence but not the underlying conviction. The Court of Appeals affirmed the sentence, and Bashaw filed a petition for review with this court, which we granted. State v. Bashaw, 144 Wash.App. 196, 182 P.3d 451, review granted, 165 Wash.2d 1002, 198 P.3d 512 (2008).

ISSUES

¶ 7 1. Did the trial court abuse its discretion by admitting testimony about the results of a measuring device without any showing of reliability?

¶ 8 2. Did the trial court correctly instruct the jury that its special finding had to be unanimous?

STANDARD OF REVIEW

¶ 9 This court reviews challenged jury instructions de novo. State v. Bennett, 161 Wash.2d 303, 307, 165 P.3d 1241 (2007). We review the admission of evidence for abuse of discretion. City of Auburn v. Hedlund, 165 Wash.2d 645, 654, 201 P.3d 315 (2009). “Abuse of discretion exists ‘[w]hen a trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons.’ ” State v. Magers, 164 Wash.2d 174, 181, 189 P.3d 126 (2008) (alteration in original) (quoting State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995)).

ANALYSIS

I. The Trial Court Abused Its Discretion by Admitting Testimony about the Results of a Measuring Device without Any Showing of Reliability

¶ 10 The first issue in this case concerns the showing of reliability necessary for a trial court to admit testimony about the results of a measuring device. In accordance with analogous precedent, we hold that admission of results from a distance measuring device requires a showing that the particular device was functioning properly and produced accurate results. Because the State produced no evidence that the distance measuring device here produced accurate results, its admission was error and an abuse of discretion. That error, however, was harmless as to counts II and III but not as to count I. Accordingly, we vacate the sentence enhancement with respect to count I on this basis.

A. Evidence Must Be Authenticated Prior to Admission

¶ 11 It is fundamental that evidence must be authenticated before it is admitted. See ER 901(a). Authentication requires that the proponent produce proof “sufficient to support a finding that the matter in question is what its proponent claims.” Id. The party offering the evidence must make a prima facie showing consisting of proof that is sufficient “to permit a reasonable juror to find in favor of authenticity or identification.” State v. Payne, 117 Wash.App. 99, 106, 69 P.3d 889 (2003); see also Judicial Council Cmt. 901 cited in 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice § 901.1, at 283 n. 3 (5th ed.2007).

¶ 12 Conceptually, authentication is a process of establishing conditional relevance. See Judicial Council Cmt. 901 cited in 5C Tegland, supra, § 901.1, at 283 n. 3; see also Robert H. Aronson, The Law of Evidence in Washington § 901.05(1), at 901-12 (4th ed. 2008) (“Unless evidence is in fact what it purports to be, it is not relevant”). As observed in Washington Practice, “a photograph might be relevant, but only if it accurately depicts the subject”; “[an audio] recording might be relevant, but only if the sounds were recorded faithfully and the voices are accurately identified.” 5C Tegland, supra, § 901.1, at 283. Likewise, a distance measurement may be relevant, but only if it is accurately measured.

¶ 13 In a line of cases analogous to the present one, the courts of this state have held that, under ER 901, speed measuring devices, such as radar devices, must be authenticated in order for their results to be admissible. See City of Bellevue v. Mociulski, 51 Wash.App. 855, 859-60, 756 P.2d 1320 (1988); see also City of Bellevue v. Hellenthal, 144 Wash.2d 425, 431-32, 28 P.3d 744 (2001) (citing Mociulski, 51 Wash.App. at 860-61, 756 P.2d 1320, with approval); City of Bellevue v. Lightfoot, 75 Wash.App. 214, 221, 877 P.2d 247 (1994) (“police traffic radar results are not admissible unless the particular radar device used is shown to be reliable”); City of Seattle v. Peterson, 39 Wash.App. 524, 527, 693 P.2d 757 (1985) (holding that evidence of a machine's reliability is a prerequisite to admission of the machine's results). Authentication of such devices requires a showing that the particular unit “was functioning properly and produced accurate results” at the time it was employed. Lightfoot, 75 Wash.App. at 221, 877 P.2d 247.²

¶ 14 We agree with the formulation of the Court of Appeals, as...