State v. Allen

• Decision Date: 10 April 2003
• Docket Number: No. 20886-9-III., No. 20869-9-III
• Citation: 116 Wash.App. 454,66 P.3d 653
• Parties: STATE of Washington, Respondent, v. Cedric Dion ALLEN, Appellant. State of Washington, Respondent, v. Bruce Andrew Schafer, Appellant.
• Court: Washington Court of Appeals

66 P.3d 653

116 Wash.App. 454

STATE of Washington, Respondent, v. Cedric Dion ALLEN, Appellant.

State of Washington, Respondent, v. Bruce Andrew Schafer, Appellant.

Nos. 20869-9-III, 20886-9-III.

Court of Appeals of Washington, Division 3, Panel Four.

April 10, 2003.

William D. Edelblute, Cece L. Glenn, Spokane, WA, for Appellants.

Kevin M. Korsmo, Andrew J. Metts, III, Deputy Prosecuting Attorneys, Spokane, WA, for Respondents.

KATO, A.C.J.

In this consolidated appeal, Cedric Allen and Bruce Schafer appeal convictions for second degree assault and unlawful imprisonment. We affirm the unlawful imprisonment convictions, but we reverse the second degree assault convictions and remand for resentencing.

Mr. Allen and Mr. Schafer were charged with first degree rape and first degree kidnapping.¹ The charges arose from an incident involving 16-year-old L.S. in February 2001. L.S. testified she gave Mr. Allen her phone number while she was working at a fast-food restaurant, and he later arranged to pick her up at her home. She testified she and Mr. Allen drove around for one to two hours, and she repeatedly told him she wanted to go home. Eventually, Mr. Allen met with Mr. Schafer and another man, and the three men and L.S. then went to an apartment where Mr. Allen and Mr. Schafer conducted a drug deal. L.S. then testified:

I was talking to the white guy [Mr. Schafer], telling him that I didn't feel right with—sorry—with Cedric, and he just told me to go in the bedroom with the black guy [Mr. Allen], and he's like, oh show me your tits and I'll take you home, and I was like fine, because I wanted to go home and I was scared, and then the white guy came in, and he just figured that he needed to—that I needed to show him, and it was just a—and then I told him I was scared and I just want to go home, and I was in the closet screaming, and ...

. . . .

And the white guy told me that if I was going to cry, he'd give me something to cry about and that I wasn't going to leave until I gave him head, and they both made me do that, and then the black guy said he had to leave and go make a deal and took my jewelry from me and then left, and the white guy was sitting there and was yelling at me, making me do things, and they told me I sucked at giving head so he had to fuck me, and then after it was done, then the [other] black guy [the third man] came back and told me it was my fault.

Report of Proceedings (RP) (Dec. 18, 2001) at 32-33.

L.S. testified she screamed throughout the events, and she tried to leave, but the men would not let her because they were standing near the door. She testified she ran into a closet to try to get away, but Mr. Allen took her out of the closet. At one point, L.S. testified "they" took her pants off, but she later testified it was Mr. Schafer who took her "bottoms" off. RP (Dec. 18, 2001) at 36, 76. She also testified Mr. Schafer struck her with a belt and grabbed her, causing a bruise.

After these events, L.S. testified, she was dropped off at a Seven Eleven store near her home, where she told the clerk she had been raped; the clerk called L.S.'s mother, who in turn called police. Specimens taken at a hospital indicated the presence of sperm in L.S.'s mouth and vagina, but not in sufficient quantities to match to any individual.

Both defendants testified in their defense. Mr. Allen said L.S. gave him free french fries and a drink at the restaurant where she worked, then wrote her phone number on the back of the receipt. He testified he called her later and picked her up, and they met Mr. Schafer and a third man, Alfred "Grump" Baker. The group then went to Mr. Baker's girl friend's apartment, Mr. Allen testified, where he and Mr. Schafer conducted a drug deal. Mr. Allen testified L.S. and Mr. Schafer had been flirting, and when he announced he was going home, L.S. asked if she could get a ride from Mr. Schafer. Mr. Allen testified he then left the apartment alone. He denied having sexual contact with or striking L.S., or preventing her from leaving.

Mr. Schafer admitted having oral sexual contact with L.S. after Mr. Allen left the apartment, but he said it was consensual. Mr. Schafer testified L.S. offered to have vaginal sex with him, but he refused because he did not know her well enough. He testified he was offended by her request for payment for performing oral sex. He denied demanding sex from L.S. or preventing her from leaving.

A jury found both defendants guilty of the lesser included offenses of second degree assault and unlawful imprisonment, both with sexual motivation.²

Mr. Allen was sentenced as a persistent offender to life without possibility of early release for the assault and 60 months for the unlawful imprisonment. Mr. Schafer was sentenced to 13 months for the assault and 8 months for the unlawful imprisonment, to be served concurrently.

We first address Mr. Allen's pro se contention that the court erred in denying his motion for a bill of particulars. The information charged in pertinent part:

COUNT I: FIRST DEGREE RAPE, committed as follows: That the defendants, CEDRIC DION ALLEN, and BRUCE ANDREW SCHAFER, as actors and accomplices to each other, in the State of Washington, on or about between February 04, 2001 and February 5, 2001, did engage in sexual intercourse by forcible compulsion with [L.S.], did kidnap the said [L.S.],

COUNT II: KIDNAPPING IN THE FIRST DEGREE, committed as follows: That the defendants, CEDRIC DION ALLEN, and BRUCE ANDREW SCHAFER, as actors and accomplices to each other, in the State of Washington, on or about between February 04, 2001 and February 5, 2001, did, with intent to facilitate commission of a felony or flight thereafter, intentionally abduct [L.S.], further the defendants CEDRIC DION ALLEN, and BRUCE ANDREW SCHAFER, committed said crime with sexual motivation under the provisions of RCW 9.94A.030 and 9.94A.127.

Clerk's Papers (No. 20886-9-III) (Allen CP) at 15.

Mr. Allen moved for a bill of particulars pursuant to CrR 2.1(c), contending the information was insufficiently specific to permit him to prepare adequately for trial. The court held the information was sufficient and denied the motion.

The function of a bill of particulars is "to amplify or clarify particular matters considered essential to the defense." State v. Noltie, 116 Wash.2d 831, 845, 809 P.2d 190 (1991). A trial court's ruling on a request for a bill of particulars is reviewed for abuse of discretion. Id. at 844, 809 P.2d 190.

The test in passing on a motion for a bill of particulars should be whether it is necessary that defendant have the particulars sought in order to prepare the defense and in order that prejudicial surprise will be avoided. A defendant should be given enough information about the offense charged so that he or she may, by the use of diligence, prepare adequately for the trial. If the needed information is in the indictment or information, then no bill of particulars is required.

1 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 129, at 652-54 (3d ed.1999) (footnotes omitted).

Mr. Allen's pro se brief does not explain how the information failed to provide notice of the nature and elements of the crimes charged. He argued in a memorandum filed in the superior court that the information failed to explain whether the State contended he acted as an accomplice or a principal in committing the rape. However, there is no distinction between accomplice or principal liability, and "the charging of one theory adequately apprises the defendant of his liability for the other." State v. Molina, 83 Wash.App. 144, 148, 920 P.2d 1228 (1996). The record shows Mr. Allen was able to present his defense without a more specific charging document. He thus has failed to establish prejudice, and there is no basis for concluding the court abused its discretion by denying his motion for a bill of particulars.

We next address the defendants' inability to obtain the testimony of a federal prisoner, which they contend deprived them of a fair trial. On the second day of trial, Mr. Schafer's attorney informed the court that he was having trouble arranging for the testimony of a witness:

MR. DRESSLER: Your Honor, ... we do have one witness at the county jail that we want to call.... There is a problem with the transport, Your Honor.

THE COURT: I've heard that. It's something like—

MR. DRESSLER: Federal hold. Marshals won't let him come.

THE COURT: Oh, that is a problem. That's a problem that should have been taken care of before now.

MR. DRESSLER: This is the first we heard, Your Honor, leastwise we would have.

RP (Dec. 19, 2001) at 55.

Mr. Dressler then informed the court he was exploring the possibility of arranging for the witness to testify by video conference without leaving the jail. That option apparently was not available, and counsel then sought a writ ad testificandum:

MR. DRESSLER: Your Honor, we're continuing to have difficulties in getting Mr. Baker.[³] The paperwork asking for a Superior Court writ is being prepared. It's my understanding that if we can get the U.S. Attorney to agree to it, it is still a matter of discretion on the part of the federal marshals. However, we are proceeding with getting that put together so it can be signed and submitted to the federals.

RP (Dec. 19, 2001) at 87-88. Counsel offered the alternatives of deposing the witness at the jail, continuing the trial until the problem could be resolved, or dismissing the charges. The court took no action at the time. Without calling Mr. Baker as a witness, both defendants rested, "[a]s we have the other problem" (apparently referring to their inability to obtain his testimony). RP (Dec. 19, 2001) at 200.

Both defendants later moved for dismissal because of their inability to obtain Mr. Baker's testimony. The court denied the motion, observing: "This almost seems a little late because it should have probably come in before all parties rested in the case." RP (Dec. 20,...