State v. Burnice, No. 32219-6-II (WA 1/18/2006)

• Court: Washington Supreme Court
• Writing for the Court: Bridgewater
• Decision Date: 18 January 2006
• Docket Number: No. 32219-6-II.,32219-6-II.
• Citation: State v. Burnice, No. 32219-6-II (WA 1/18/2006), No. 32219-6-II. (Wash. Jan 18, 2006)
• Parties: STATE OF WASHINGTON, Respondent, v. KARL EDWARD BURNICE, UNPUBLISHED OPINION Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. KARL EDWARD BURNICE, UNPUBLISHED OPINION Appellant.

No. 32219-6-II.

Court of Appeals of Washington, Division Two.

Filed: January 18, 2006.

Appeal from Superior Court of Clark County. Docket No: 04-1-00055-6. Judgment or order under review. Date filed: 08/31/2004. Judge signing: Hon. Diane M Woolard.

Counsel for Appellant(s), James J Sowder, Attorney at Law, 1600 Daniels, PO Box 27, Vancouver, WA 98666-0027.

Counsel for Respondent(s), Kelli Ellen Osler, Clark County District Ct, PO Box 9806, Vancouver, WA 98666-8806.

BRIDGEWATER, J.

Karl Edward Burnice appeals his conviction for first degree burglary. We affirm.

Ronald E. Crismon lived in a small fifth wheel tractor trailer, parked on Roger Wilson's 180-acre farm in Clark County. In the early morning on January 6, 2004, Crismon was asleep in a recliner in his trailer. It was snowing. Crismon woke up when two men, one white and one black, entered the trailer. He saw the men for only approximately five to ten seconds, during which time he believed that one of the men hit him in the head with the barrel of a gun. Crismon could not identify the black man who entered the trailer.¹

According to Crismon, the two men gagged him with an old towel and tied him up. The men then proceeded to take various items from the trailer, including a coin collection; part of a knife collection; two camcorders; a Sony Play Station II; $1,000-$1,200 in cash; and other miscellaneous items. Crismon was still tied up when the men left.

Crismon then freed himself from the restraints and went to Wilson's house. In a pick-up truck, Crismon and Wilson followed footprints in snow from the trailer to a blue Camaro. They tried to stop the Camaro, but it drove away. Crismon and Wilson followed the Camaro, called 911, and broke off their pursuit when the police pursuit started in Camas. Crismon saw Ronald Hawkins in the fleeing Camaro, but testified Hawkins was not the white man who had entered the mobile home.

Police officers from Camas and Vancouver, Washington and Portland, Oregon pursued the Camaro from Camas to Portland. The pursuit ended in Portland, near the entrance of a trailer park located at 7041 N.E. Killingsworth. Officer Jeffery Wilken, of the Vancouver Police Department, testified that he observed the Camaro come to a stop and saw what appeared to be three persons flee the Camaro. He identified one of the individuals as `a very large individual who appeared to be a black male,' who jumped out of the back seat and fled into the trailer park.

Shortly after the chase ended,² Deputy Brian Ellithorpe, a Clark County deputy and K-9 handler, arrived on the scene with his dog, Eiko.³ Deputy Ellithorpe and Eiko began tracking the suspects minutes after arriving on the scene. The officers and Eiko started the track at the point where the alleged suspects' footprints began in the snow. The track led to a fence, and although Eiko detoured around a fence, he never lost the track. Eventually, Eiko led the officers to Burnice, a 6'9' tall, 340 lb. black male. Burnice was hiding under a trailer. Officer Wilken then arrested Burnice.

About one week later, Ronald Hawkins turned himself in because the police were looking for him in connection with the burglary. Hawkins and the victim, Crimson, had been engaged in an ongoing dispute over a business transaction in which Hawkins traded a motorcycle to Crimson for a car. Having heard rumors that Crimson had stolen some personal items from him, Hawkins went to Crimson's trailer to see if Crimson had the items. Dave Bonet⁴ and a man named Karl accompanied him. Hawkins later identified Burnice as the Karl who came with him.

At trial, Hawkins testified that after being unable to locate any of his stolen property, he left, and headed back to the Camaro. Burnice and Bonet, however, indicated to Hawkins they were going inside to look around. They soon came out with items from the trailer, and the three men fled in the Camaro with Bonet driving and Burnice in the back seat. The three men eventually fled the car on foot into the Portland trailer park. Hawkins escaped by hiding in some garbage.

At his interview with Deputy Eric O'Dell of the Clark County Sheriff's Office, Hawkins first told officers that he was not involved in the burglary. At some point during the interview, Hawkins requested to go off the record. After the interview officially resumed, Hawkins gave the police a statement consistent with his later testimony.

Burnice was arraigned on June 4, 2004. The trial was set for July 26, 2004, 52 days after arraignment. The State moved for a continuance beyond the speedy trial date to accommodate the Officer Wilken's planned vacation. The trial court granted the motion and set the trial for August 16, 13 days after the original speedy trial period elapsed. The trial court entered a finding that Burnice planned to call only himself as a witness and concluded he would not be prejudiced by the delay.

Before trial, Burnice moved to exclude the dog tracking evidence as unreliable. During the offer of proof, Deputy Ellithorpe testified he was a K-9 handler, with five and a half years' experience with Eiko.⁵ In the past, Deputy Ellithorpe and Eiko had completed tracks `during really cold and ice, wet, icy weather.' 3B Report of Proceedings (RP) (Aug. 17, 2004) at 337. But Eiko had never tracked in snow before January 6, 2004. But Eiko is specifically trained to discern and follow individual human scents. In all, Deputy Ellithorpe and Eiko have completed 352 tracks together, 108 of which resulted in arrests. Deputy Ellithorpe testified that he has terminated tracks in the past for various reasons, such as a suspect driving off in a car and time delays. Based on his experience with Eiko, Deputy Ellithorpe indicated that overall the dog was `very reliable.' 3B RP at 289.

In light of Deputy Ellithorpe's testimony, the trial court admitted the dog tracking evidence. The trial court specifically found that (1) Deputy Ellithorpe was qualified as a dog handler, (2) Eiko was adequately trained, (3) Eiko had experience in reliably tracking humans, (4) Eiko was placed on the track where circumstances indicated the suspect had been, and (5) the trail was not stale. In addition, the court found the dog's track sufficiently corroborated by Hawkins's testimony to be admissible.

Burnice also sought to introduce evidence of the Hawkins and Crismon's relationship over the past several years. To avoid disputing unrelated issues, the trial court limited the testimony to evidence `that there's a long, acrimonious, or a short, or a two-year acrimonious relationship.' 2B RP (Aug. 16, 2004) at 69.

Finally, Burnice moved for discovery of the content of Hawkins's off the record discussion with police, indicating that he wished to discover any deal for Hawkins's testimony as well as Hawkins's relationship with the Gypsy Joker motorcycle club. The trial court held an in camera interview with Deputy O'Dell and ruled that the substance of the conversation was not relevant to Burnice's case and that no promises or threats had induced Hawkins's testimony. The court then sealed the record of the interview.

In the in camera interview, the court questioned Deputy O'Dell regarding his off record discussion with Hawkins. Deputy O'Dell indicated that Hawkins voluntarily decided to disclose information about the burglary after he realized he was going to jail. The deputy also indicated that there was a federal investigation unrelated to the burglary but that the federal investigation played no part in Hawkins's interrogation regarding the burglary. The deputy also stated, again, that no promises or threats were used to induce Hawkins's testimony against Burnice.

The trial commenced on August 16, 2004. A jury found Burnice guilty of first degree burglary, pursuant to RCW 9A.52.020(1)(b) and RCW 9A.08.020(3). The court sentenced him to serve 78 months in prison. Burnice now appeals his conviction.

I. Speedy Trial

Burnice contends that the trial court abused its discretion by granting a continuance to accommodate Officer Wilken's scheduled vacation. We disagree.

A trial court's decision to grant a continuance will not be disturbed absent a manifest abuse of discretion. State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985). Discretion is abused if it is exercised on untenable grounds. State v. Heredia-Juarez, 119 Wn. App. 150, 153, 79 P.3d 987 (2003). To preserve the dignity of officers who would otherwise not be able to take vacations, Washington courts consider scheduled vacations of investigating officers good cause for a continuance. State v. Torres, 111 Wn. App. 323, 331, 44 P.3d 903 (2002), review denied, 148 Wn.2d 1005 (2003).⁶ In addition, the unavailability of a material witness is valid ground for a continuance if there is no substantial prejudice to the defendant and the witness has a valid reason for being unavailable. State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936, review denied, 122 Wn.2d 1008 (1993).

Here, Officer Wilken had a preplanned out-of-state vacation during the week trial began and the following week. In addition, Burnice indicated that only he would testify in his defense. Thus, the delay did not cause the defense inconvenience or prejudice in preparing Burnice's case. As an officer's preplanned vacation is a legitimate reason for delay, the trial court did not err in finding that Burnice would not be prejudiced in the presentation of his defense by the two-week delay for Officer Wilken's vacation.⁷

Burnice's argument that the continuance was improper because Officer Wilken was not an essential witness is also unpersuasive. At trial, Burnice's primary contention was that he was not in the fleeing Camaro, but was just standing near the entrance to the trailer park. Burnice also contends that the dog track was unreliable. Thus, Officer Wilken's...