State v. Bergstrom
| Decision Date | 27 January 2022 |
| Docket Number | 99347-5 |
| Parties | STATE of Washington, Petitioner, v. Zachary P. BERGSTROM, Respondent and Cross-Petitioner. |
| Court | Washington Supreme Court |
Brett Ballock Pearce, Gretchen Eileen Verhoef, Larry D. Steinmetz, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, for Petitioner.
Eric J. Nielsen, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, for Respondent.
¶1 In 2017, Zachary Bergstrom was charged with possession of a controlled substance. He was later released on bail. For various reasons, among them, hospitalization, tardiness, and struggles with drug addiction and homelessness, Mr. Bergstrom missed three required court dates. Because of Mr. Bergstrom's failures to appear (FTAs), the State charged him with three counts of bail jumping. The jury acquitted Mr. Bergstrom of the underlying possession charge but convicted him of three counts of bail jumping under former RCW 9A.76.170 (2001) ().
¶2 On appeal, Mr. Bergstrom argued that (1) the to-convict jury instructions were constitutionally infirm because they omitted an essential element, that is, that he failed to appear "as required," (2) the State's evidence that Mr. Bergstrom knew of the required court dates was "equivocal" and therefore insufficient on two counts of bail jumping, and (3) defense counsel's failures to object to certain evidence and to request an affirmative defense instruction amounted to ineffective assistance of counsel. The Court of Appeals affirmed in part and reversed in part, agreeing that the to-convict jury instructions were deficient but on the alternate ground that "the to-convict instructions did not require the State to prove an element of bail jumping—that Bergstrom knowingly failed to appear as required." State v. Bergstrom , 15 Wash. App. 2d 92, 100, 474 P.3d 578 (2020) (published in part). The court nonetheless determined the error was harmless because "the uncontroverted evidence established that Bergstrom received notice he was required to attend court on January 12, 2018, April 18, 2018, and May 4, 2018," and he therefore knowingly failed to appear on those dates. Id . In the unpublished portion of its opinion, the court reversed Mr. Bergstrom's bail jumping conviction for his FTA on January 12, 2018 due to ineffective assistance of counsel.
¶3 We reverse in part because "knowingly failed to appear" was not an element of the 2001 bail jumping statute in effect at the time of Mr. Bergstrom's FTAs because the legislature amended the bail jumping statute in 2001 to expressly replace this language with the broader knowledge requirement, "knowledge of the requirement of a subsequent personal appearance before any court of this state."1 H.B. 1227, 57th Leg., Reg. Sess. (Wash. 2001). Despite omission of the phrase "as required," the to-convict jury instructions, as a whole, informed the jury of each essential element of bail jumping and were, therefore, constitutionally sound. We otherwise affirm the Court of Appeals because the evidence that Mr. Bergstrom had knowledge of the April 18, 2018 court date was sufficient to convict.2
¶4 This case prompts us to address the judiciary's role as a fair and impartial body and its obligation to engender confidence in our legal system. Under our Code of Judicial Conduct, judges and court officers are obligated to promote justice and uphold the rule of law.3 It is critical that our courts be cognizant of the clarity and accessibility of court communications and orders, especially when dealing with parties experiencing trauma or who are in crisis, such as those coping with poverty, drug addiction, and homelessness.
¶5 In September 2017, Mr. Bergstrom was charged with possession of a controlled substance. Over the course of approximately five months, Mr. Bergstrom failed to appear at his three court dates on January 12, 2018, April 18, 2018, and May 4, 2018 (together the three court dates). During this time, Mr. Bergstrom struggled with drug addiction and homelessness. See 1 Verbatim Report of Proceedings (July 9, 2019) (VRP) at 243-48, 263.
¶6 On September 22, 2017, at Mr. Bergstrom's initial bail hearing, a judge granted bail on several conditions, including that Mr. Bergstrom appear at all court dates, maintain contact with his attorney, and abide by all court orders and conditions of supervision. Approximately two and a half weeks later, Mr. Bergstrom was released on bail. Nearly one month after his release, on November 3, 2017, Mr. Bergstrom returned to court for a pretrial conference, after which the court issued a scheduling order setting a subsequent pretrial conference for January 12, 2018 (the November scheduling order). Mr. Bergstrom failed to appear on January 12, 2018. He explained at trial that he was absent because he was in the hospital on that day. Though the precise timeline is unclear, Mr. Bergstrom stated that he voluntarily contacted his attorney and bond company a few days after he left the hospital because he "kn[e]w that [he] had missed a court date." VRP at 237-39. The bond company effected a bond surrender, and Mr. Bergstrom returned to jail. Four days after this first FTA, a bench warrant issued for Mr. Bergstrom's arrest.4
¶7 On February 28, 2018, the trial court issued a scheduling order setting a new pretrial conference for May 4, 2018 (the February scheduling order). Mr. Bergstrom remained in custody at the Geiger Corrections Center. Approximately one month later, on April 10, 2018, Mr. Bergstrom was released by court order for a 14-day evaluation period to determine whether he would be admitted to the drug court program. According to written conditions of release, he was required to appear before the drug court at 3:00 p.m. on April 11, 2018 and April 18, 2018 (the April release order). Mr. Bergstrom failed to appear at the designated time on April 18, 2018, and a bench warrant issued for his arrest that day. Mr. Bergstrom testified that he arrived "late" to court on April 18, 2018 but that he spoke with a court employee who said the court would try to reschedule with him. VRP at 241-42. A Department of Corrections record admitted at trial corroborated his testimony, showing that a judicial assistant sent an e-mail to the drug court officer to explain that Mr. Bergstrom arrived late "and she told him to be back at 10:00 a.m." Id . at 208, 242. There is no further communication apparent on the record that relates to this or any rescheduled hearing. Mr. Bergstrom's case remained on the criminal docket.
¶8 Approximately two and a half weeks after his FTA before the drug court, Mr. Bergstrom failed to appear for his pretrial conference on May 4, 2018, which had been set a full two months prior in the February scheduling order. A new bench warrant issued for his arrest that day. Mr. Bergstrom testified that he "was not aware of" this pretrial conference because, at that time, he struggled to remain in contact with his attorneys and parole officer—he was homeless, had no phone, and was using drugs. Id . at 244-48.
¶9 Mr. Bergstrom was arrested approximately one month later on new drug and firearm charges, none of which are relevant to the petition before this court. Because of his FTAs, the State added three counts of bail jumping to Mr. Bergstrom's charges.
¶10 The State's case on the bail jumping charges relied heavily on certified court documents and testimony from court employees to establish that Mr. Bergstrom knew he was required to appear in court and that he failed to do so on the three court dates. Two deputy clerks testified that Mr. Bergstrom was on the docket but did not appear at the required times on each of the three court dates. The November scheduling order and February scheduling order were signed by both Mr. Bergstrom and his attorney and stated in all capital letters that Mr. Bergstrom was required to appear for all court dates "or a warrant for arrest may be issued." Exs. 3, 7; see VRP at 169, 175. The April release order, also signed by Mr. Bergstrom and his attorney, mandated Mr. Bergstrom's presence on April 18, 2018 "to formalize his ... participation in or to opt out of the [drug court] program." Ex. 8, at 2. This order also stated that the precise court time was "subject to change" and that "Pioneer[5 ] will advise you of the correct court time." Id . Mr. Bergstrom conceded at trial that the aforementioned orders were each signed in a space designated for his signature. VRP at 257-58.6
¶11 The jury members were provided the following to-convict jury instructions on each count of bail jumping:
Clerk's Papers (CP) at 148, 150, 152; VRP at 275-77. These instructions mirrored the 11A Washington Practice: Washington Pattern Jury Instructions: Criminal (4th ed. 2016) (WPIC), and Mr. Bergstrom's defense counsel did not object to them at trial.9 The jury acquitted Mr. Bergstrom of the underlying drug possession charge but found him guilty of three counts of bail jumping.
¶12 Division Three of the Court of Appeals held that the to-convict jury instructions improperly relieved the State of its burden to prove that Mr. Bergstrom "knowingly failed to appear as required" because "no element in the to-convict instruction required the State to prove Bergstrom knew he was required to appear on the dates alleged in the particular counts." Bergstrom , 15 Wash. App. 2d at 99, 474 P.3d 578. The court declined to follow State...
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