State v. Arquette

• Decision Date: 10 December 2013
• Docket Number: No. 42546–7–II.,42546–7–II.
• Citation: 178 Wash.App. 273,314 P.3d 426
• Parties: STATE of Washington, Respondent, v. Nick Taylor ARQUETTE, Appellant. In re the Personal Restraint Petition of, Nick Taylor Arquette, Petitioner.
• Court: Washington Court of Appeals

178 Wash.App. 273

314 P.3d 426

STATE of Washington, Respondent,

v.Nick Taylor ARQUETTE, Appellant.

In re the Personal Restraint Petition of, Nick Taylor Arquette, Petitioner.

No. 42546–7–II.

Court of Appeals of Washington,

Division 2.

Dec. 10, 2013.

Jordan Broome McCabe, McCabe Law Office, Bellevue, WA, for Appellant.

Jordan Broome McCabe, McCabe Law Office, Bellevue, WA, for Petitioner.

Mike Khoa Anh Nguyen, Prosecuting Attorney Office, Susan Irene Baur, Cowlitz Co. Prosecutor's Office, Kelso, WA, Michelle L. Shaffer, Attorney at Law, Portland, OR, for Respondent.

BJORGEN, J.

¶ 1 Following a bench trial, Nick Taylor Arquette was found guilty of first degree perjury. Arquette appeals his conviction, asserting that (1) sufficient evidence did not support his conviction and (2) his conviction subjected him to double jeopardy. We consolidated Arquette's direct appeal with his personal restraint petition (PRP), in which he argues that (1) sufficient evidence did not support his previous conviction for second degree perjury following a jury trial and (2) his previous appellate counsel was ineffective for failing to challenge the sufficiency of evidence in his previous direct appeal. Holding that the State's corroborating evidence was not inconsistent with Arquette's innocence, we grant Arquette's PRP, reverse his convictions, and remand to the trial court to dismiss both charges with prejudice.

FACTS

A. Background

¶ 2 In March 2009, Gary McKee paid Robert Tribble $140 for a 1970 Datsun truck that, unknown to McKee, belonged to Tribble's roommate, Arquette. When Tribble failed to deliver the truck, McKee went to Tribble's home to look for him. There McKee met Arquette, who explained to McKee that he was the owner of the Datsun truck and not Tribble. The parties disagree as to what happened next.

¶ 3 According to McKee, Arquette told him that “he would give me the title ... as soon as I brought [Tribble] there, so he could tell [Tribble] to no longer come to his property.” Clerk's Papers (CP) at 57. McKee stated that after he brought Tribble to Arquette's home a couple of days later, Arquette retrieved the Datsun's title from another truck, went into the house to sign it, and then handed the title to him. McKee also stated that, because the truck was not in running order, he came back to the house a couple of days later to tow it away. McKee said that Arquette was present on the day he came to tow the Datsun away and that Arquette had to move another truck to provide him access to the Datsun.

¶ 4 In contrast with McKee's account of events, Arquette stated that he did not agree to turn over possession of his Datsun and that McKee became aggressive toward him. Arquette described one occasion where McKee and McKee's brother came to his house and assaulted one of Arquette's guests. Arquette also described another occasion where McKee came to his house and asked him to move another truck to allow McKee access to the Datsun. Arquette stated that he had refused to move his truck and that he had warned McKee, “[I]f it's off my property, I'm gonna report it stolen.” CP at 25. Arquette further stated that he had reported the Datsun stolen the following day when he came home from work and saw that it had been taken.

¶ 5 On March 29, 2009, Arquette called the police to report that a friend had told him the missing Datsun was “somewhere on the 200 ... block of Cypress.” CP at 28. Longview police officer Charles Meadows responded to the report and found the Datsun parked in McKee's carport. When Meadows found the Datsun, he noted that the truck was parked in plain sight with the correct license plates attached and that there was no damage to the truck's ignition or locks. Meadows called Arquette to tell him that the Datsun had been located and asked Arquette to pick up the vehicle; Arquette told Meadows that he was unable to pick up the truck and that he would make arrangements to pick it up later.

¶ 6 Later that same day, McKee called the police and asked why an officer had been behind his residence looking at the Datsun. Meadows arranged to speak with McKee in person at McKee's residence. When Meadows told McKee that the Datsun had been reported stolen, McKee became upset and told Meadows that the truck belonged to him. McKee showed Meadows the title to the Datsun, which contained a signature from Arquette appearing to release Arquette's ownership interest in the truck.

¶ 7 That same day, Meadows called Arquette and asked him to come to the Longview Police Department to speak with him. Arquette agreed to meet with Meadows on April 1, but he did not show up on that date. Meadows again called Arquette on April 18, and after he did not receive an answer, went to Arquette's residence. Meadows asked Arquette about the Datsun's title and Arquette explained that he believed the title had been taken by Tribble, his former roommate.

¶ 8 Meadows asked Arquette to fill out a police statement form and left the form with Arquette. Arquette wrote the following on the form:

[McKee] came by two or three times; one of those times I found out why he came over. He said he bought the truck off [Tribble], and then I told him it wasn't [Tribble's] to sell. Then he said that he paid a hundred and forty bucks for it, and I told him it wasn't for sale and if you [take] it off my property I was go[ing to] report it stolen, and he (sic) came home from work on a Friday, it was gone, so I reported it stolen.

CP at 14.¹ The police form, which Arquette signed, included a provision stating, “I have read the above statement; certify and declare it to be true and correct under the penalty of perjury under the laws of the State of Washington.” CP at 127. Arquette left the signed statement in the door of his house, and Meadows retrieved the statement while Arquette was away at work.

B. Procedural1. 2010 Second Degree Perjury Conviction and First Appeal

¶ 9 In October 2009, the State charged Arquette with two counts of second degree perjury. The first count related to Arquette's March 27 signed Longview Police Department Incident Report and the second count related to his April 18 signed police statement form. The trial court dismissed the first count,² and the second count was tried to a jury on May 5, 2010.

¶ 10 At Arquette's jury trial, McKee testified as stated above. The State also called Doyle Ash, who testified that he went with McKee and McKee's brother to Arquette's home to help tow away the Datsun. Ash stated that Arquette moved his truck to allow McKee access to the Datsun without incident. However, on cross examination Ash admitted that he did not clearly see Arquette on the day he helped to tow the Datsun and that he had been unable to identify Arquette in a photograph lineup when questioned by police.

¶ 11 Arquette testified that he had signed the Datsun's title on March 11, 2009, the day he received the title from United Finance after making his final payment for the truck. Arquette stated that he signed the title in anticipation of a pending sale to an individual in Kelso, Washington. Arquette further stated that he had placed the title on a dresser and that he suspected that Tribble had taken the title along with some of his other possessions.

¶ 12 Defense witness Greg Rupert testified that he was at Arquette's home when two men showed up and told Arquette that they were going to pick up the Datsun. Rupert stated that he heard Arquette tell the men, “I'll call the cops if you take it.” CP at 155. Defense witness Christopher Hawkins testified that he was at Arquette's home when McKee and McKee's brother came over and demanded possession of the Datsun. Hawkins stated that McKee was aggressive and that Arquette told McKee that the truck was not Tribble's to sell. Hawkins also stated that he heard Arquette tell McKee that he would call the cops if McKee hauled the truck away. The jury returned a verdict finding Arquette guilty of second degree perjury.

¶ 13 Arquette appealed his conviction to our court, asserting that “one of the trial court's jury instructions incorrectly stated the law and lowered the burden of proof for perjury.” State v. Arquette, 162 Wash.App. 1025, 2011 WL 2464682 at *1 (Wash.App. Div. 2).³ His direct appeal did not challenge the sufficiency of evidence used to convict him of second degree perjury. On June 21, 2011, we affirmed Arquette's second degree perjury conviction in an unpublished decision. Arquette, 162 Wash.App. 1025.

2. New 2011 First Degree Perjury Bench Trial Conviction and Direct Appeal

¶ 14 On December 10, 2010, while Arquette's appeal was still pending, the State filed a new charge alleging that Arquette had committed first degree perjury based on his testimony at his 2010 trial on the second degree perjury charge. Arquette waived his jury trial right on the new perjury charge and agreed to a bench trial. Arquette stipulated that he had signed the title to the Datsun and that he had knowingly made the statements contained in his 2010 trial testimony. After reviewing a video of Arquette's 2010 trial and hearing arguments from counsel, the trial court found Arquette guilty of first degree perjury. Arquette timely appealed this first degree bench trial perjury conviction on grounds that sufficient evidence did not support the conviction and that the conviction constituted double jeopardy.

3. PRP Challenge to 2010 Perjury Conviction; Consolidation with Direct Appeal of 2011 Conviction

¶ 15 On January 17, 2012, Arquette filed a PRP challenging his 2010 second degree jury trial perjury conviction on the grounds that sufficient evidence did not support the conviction and that his appellate counsel was ineffective for failing to raise a sufficiency challenge in his direct appeal. We consolidatedArquette's PRP with his direct appeal of his new conviction and remanded to the Cowlitz County Superior Court for entry of findings of fact and conclusions of law as required under CrR 6.1(d). The trial court entered...