State v. Burton

• Decision Date: 12 January 2012
• Docket Number: Nos. 24944–1–III,29337–8–III.,s. 24944–1–III
• Citation: 165 Wash.App. 866,269 P.3d 337
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jackie R. BURTON, Appellant.

165 Wash.App. 866

269 P.3d 337

STATE of Washington, Respondent,

v.Jackie R. BURTON, Appellant.

Nos. 24944–1–III

29337–8–III.

Court of Appeals of Washington, Division 3.

Jan. 12, 2012.

Janet G. Gemberling, Janet Gemberling PS, Spokane, WA, for Appellant.

Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Andrew J. Metts, III, Spokane County Prosecuting Office, Spokane, WA, for Respondent.

OPINION PUBLISHED IN PART

SIDDOWAY, J.

[165 Wash.App. 868] ¶ 1 Jackie Burton appeals her conviction of solicitation to commit murder in the first degree, imposed after she paid an undercover officer to kill her ex-employer/lover. She claims a right to a new trial based on an extraordinary delay in preparation of the transcript of her trial and on other grounds. While the court reporter's delay in producing the trial transcript was inexcusable, the record was settled in a permitted and reliable manner. We find no demonstrable prejudice to her appeal as a result of the three-year delay and the delay, standing alone, does not warrant a new trial. For that reason, and finding no other error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Jackie Burton worked as a paralegal for attorney Peter Dahlin from 1991 to 2004. The two began an intimate and turbulent relationship in the fall of 2002, after Ms. Burton separated from her husband. Ms. Burton admits that she was by that time an alcoholic; her problems with alcohol began during the difficult final years of her marriage. Mr. Dahlin repeatedly fired Ms. Burton for consuming alcohol at work after their personal relationship began. He nonetheless rehired her after each termination because his office “was in shambles” without her. Report of Proceedings (RP) (Dec. 5, 2005) at 104. For her part, Ms. Burton claims that Mr. Dahlin was physically and mentally abusive. Their professional and personal relationship came to a definitive end in December 2004, after Mr. Dahlin watched Ms. Burton slam her car into his car, outside his home.

¶ 3 Shortly thereafter Ms. Burton began working for another attorney, Michael Riccelli, where she was introduced to Jon Ballentine, one of Mr. Riccelli's clients, in early January 2005. Mr. Ballentine was introduced as someone who provided protection services, and he handed her a business card for his security business, “Large White Man, Inc.” RP (Dec. 6, 2005) at 46. The two briefly discussed problems she was having with Mr. Dahlin. Ms. Burton met shortly thereafter with Mr. Ballentine and two of his associates (introduced to her as “Animal” and “Daddy Rat”) at a local bar. Id. at 48. Ms. Burton spoke to Mr. Ballentine separately at one point during the evening, in the privacy of his car, and asked whether he could be hired to kill Mr. Dahlin. Mr. Ballentine said that he would think about it.

¶ 4 The next day, Ms. Burton called Mr. Ballentine to follow up on her expressed interest in having him kill Mr. Dahlin. Her persistence led Mr. Ballentine to conclude that she was “going to hurt somebody,” prompting him to call Mr. Riccelli and report the conversations. RP (Dec. 5, 2005) at 65. Mr. Riccelli arranged for Mr. Ballentine to meet with a homicide detective with the Spokane Police Department. Mr. Ballentine met with the detective and agreed to cooperate with Spokane police.

¶ 5 At the request of detectives, Mr. Ballentine called Ms. Burton to see if she wanted to meet with a hit man he supposedly knew, who in reality would be undercover detective Leroy Fairbanks. Ms. Burton said she did, and arrangements were made for her to meet with Mr. Ballentine and the purported hit man in a room at a local motel. Officers obtained a court order permitting them to wire the room with audio and video recording equipment. The recording of the meeting captured Ms. Burton telling Detective Fairbanks that she wanted Mr. Dahlin dead and that she wanted his death to be painful. She was also recorded giving him $500 in cash as a down payment and a drawing of the interior of Mr. Dahlin's residence. At the conclusion of the meeting, Ms. Burton was allowed to leave, with no indication anything was amiss.

¶ 6 Police promptly contacted Mr. Dahlin, reported the situation, and asked if he would cooperate by posing for photographs in which he would appear to have been beaten and killed. The photographs would be presented to Ms. Burton as proof that the hit had been completed. Mr. Dahlin agreed, a makeup artist was brought in to simulate trauma and pallor, and photos were taken. Later that day, Ms. Burton was contacted by Detective Fairbanks and agreed to meet him in a grocery store parking lot. During this encounter, which was also recorded, Ms. Burton reviewed the photos, expressed her gratitude, and gave the detective an additional $500. Ms. Burton was immediately arrested and was later charged with solicitation to commit first degree murder.

¶ 7 Before trial, Ms. Burton moved in limine to exclude any evidence of prior bad acts on her part. The State responded that it did not intend to introduce the incident involving Ms. Burton slamming her car into Mr. Dahlin's car unless it became relevant in light of evidence presented by the defense. The court invited any reply by defense counsel, who accepted the State's response as adequate. The court reserved ruling on the motion, commenting:

[O]bviously, [c]ounsel, if indeed the entrapment defense is presented, which it appears it will be, and particularly further if psychological testimony on the point of particular susceptibility to inducement is admitted, then it may ... well be that the State would be within its rights from [an] evidentiary perspective in raising such matters, so we'll reserve that one.

RP(Dec. 1,2005 a.m.) at 10.

[165 Wash.App. 871] ¶ 8 At trial, defense counsel detailed Ms. Burton's version of events in opening statement. According to Ms. Burton, she only told Mr. Ballentine that she wanted Mr. Dahlin to leave her alone; Mr. Ballentine suggested that he and his crew could “rough up” Mr. Dahlin, RP (Dec. 6, 2005) at 52; Mr. Ballentine misread her intentions and went forward with arrangements to have Mr. Dahlin killed; upon learning of his arrangements, she insisted that it was a misunderstanding; and Mr. Ballentine, evidently concerned she might report his conduct to police, decided to approach law enforcement first and shift all responsibility to her. She claimed that her continuing discussion of the plan after Mr. Ballentine began cooperating with police was solely because he convinced her it was too late to turn back. Defense counsel told the jury that the evidence would show that “what took place on that tape and the crime that was committed here was not the design, the idea, or the desire of Ms. Burton, but was a plan, a design and script that was carefully outlined by law enforcement agents and Mr. Jon Ballentine.” RP (Dec. 5, 2005) at 60.

¶ 9 When it came time in the State's case to examine Mr. Dahlin, the prosecutor elicited his testimony to several hostile acts committed against him or his property by Ms. Burton as their relationship deteriorated. Many of the questions and answers drew no objection from defense counsel. Defense counsel ultimately did object, complaining at sidebar that the prosecutor's questions were improper given representations made when the motion in limine was heard. The court sustained the defense objection to further “bad acts” evidence, with one exception; it allowed the State to inquire into the final car-ramming incident. Id. at 107. The court also offered to give a limiting instruction, but defense counsel declined, stating that he was “caught at this point” because “[t]he damage is already done.” Id. at 109.

¶ 10 In the defense case, Ms. Burton testified to a version of events that contradicted Mr. Ballentine's in nearly every respect. She testified that Mr. Ballentine essentially forced her to commit the crime, leading her to believe that he had made irreversible preparations to have Mr. Dahlin killed. She explained that her chronic intoxication and her fear of Mr. Ballentine left her with no other choice but to go through with the meetings. She also claimed to have been groomed by Mr. Ballentine to say what she said during the recorded conversation at the motel.

¶ 11 The jury was instructed on the defense of entrapment. The instruction, which was otherwise drawn from the Washington pattern instruction, omitted its language addressing the burden of proof.¹ The omitted language would have explained that the defendant bears the burden of proving the defense of entrapment by a preponderance of the evidence.² No objection was made to the instruction as given.

¶ 12 During the State's closing argument, the prosecutor addressed what it means to have an “abiding belief” in the truth of the charge within the meaning of the jury instruction on the burden of proof.³ The prosecutor suggested that if jurors were asked a year from trial at a cocktail party what the case was about, and if they would reply “ the case was about a woman who hated her bos[s] and wanted to ... kill him and [thought she was hiring a] hit man and paid [$500 to an undercover cop] and the whole thing was on videotape,” then Ms. Burton was guilty and they would have an abiding belief in her guilt. RP (Dec. 6, 2005) at 127. No objection was made to the characterization.

¶ 13 Ms. Burton was found guilty by the jury and sentenced to 15 years. She timely appealed.

¶ 14 Consideration of Ms. Burton's appeal has been significantly delayed.

¶ 15 The judgment and sentence was entered on February 3, 2006. A trial transcript was requested by Ms. Burton in March 2006, and it was to be produced by the court reporter at the trial, Loni Smith, by the end of May. Ms. Smith resigned her position with the superior court in early May 2006 and moved to Utah. The due date to prepare the transcript was thereafter extended by this court to mid-September. When the transcript was not produced by the extended deadline,...