State v. Chouap

• Decision Date: 11 September 2012
• Docket Number: No. 41426–1–II.,41426–1–II.
• Citation: 285 P.3d 138
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kamara K. CHOUAP, Appellant.

285 P.3d 138

STATE of Washington, Respondent,

v.Kamara K. CHOUAP, Appellant.

No. 41426–1–II.

Court of Appeals of Washington, Division 2.

Aug. 14, 2012.

As Amended Sept. 11, 2012.

Valerie Marushige, Attorney at Law, Kent, WA, for Appellant.

Kathleen Proctor, Pierce County Prosecuting Atty Ofc., Tacoma, WA, for Respondent.

ARMSTRONG, J.

¶ 1 Kamara Chouap appeals his convictions of two counts of attempting to elude a pursuing police vehicle and one count of second degree assault. He also appeals the jury's findings that his conduct threatened physical injury or harm to a person other than himself or a pursuing law enforcement officer and that he knowingly assaulted a law enforcement officer who was performing his official duties. Chouap argues: (1) the State violated his double jeopardy rights by convicting him of two eluding charges based on essentially the same conduct; (2) the trial court erroneously instructed the jury that it had to unanimously agree on the special verdicts in violation of Bashaw;¹ (3) the trial court sentenced him to a term that exceeds the statutory maximum; (4) the trial court erred by sealing jury questionnaires without a Bone–Club² analysis; and (5) the trial court erred in finding his exceptional sentence legally justified.

¶ 2 In his statement of additional grounds, Chouap argues that insufficient evidence supports the second degree assault conviction. He also contends that his counsel ineffectively represented him by failing to move to dismiss the second degree assault charge, not proposing a lesser included instruction on third or fourth degree assault, and inadequately cross-examining Deputy Brian Heimann regarding inconsistent statements. Finding no reversible error, we affirm.

FACTS

¶ 3 On March 5, 2010, at approximately 2:46 a.m., two Tacoma police officers saw Chouap driving a black Cadillac with the license plate 745YSX. Chouap was traveling west on South 56th Street in University Place. When the officers started following Chouap with their emergency lights activated, Chouap accelerated rapidly.

¶ 4 Chouap drove 70 m.p.h. on several streets with posted speed limits of 30 or 35 m.p.h. After a short chase, Chouap hit a speed bump; his car became airborne and sparked. The officers terminated the pursuit because Chouap's reckless driving was dangerous to the officers and the public.

¶ 5 But the officers continued to look for the vehicle and spotted it 15 to 20 minutes later. Chouap was still traveling at high speed with the car “fish-tail[ing]” and nearly out of control. 6 Report of Proceedings (RP) at 96. The officers again started pursuing Chouap. After a highspeed chase through residential areas, the officers lost sight of Chouap's vehicle. One officer testified that in his opinion, Chouap's driving endangered himself, other people, and property.

¶ 6 Shortly thereafter, a Lakewood police officer saw Chouap driving at a normal speed. The officer knew of the earlier chase and pulled up behind Chouap. Chouap immediately accelerated to approximately 80 m.p.h. in a 35 m.p.h. zone. The officer activated his lights and siren, and another officer joined the chase. At one point, a car ahead of Chouap had to pull to the right of the road to avoid being struck by Chouap's vehicle.

¶ 7 Chouap ultimately drove onto Interstate–5 northbound, maintaining a speed of 70 to 80 m.p.h. Chouap drove erratically, waiting until the last minute to exit the highway. Lakewood police continued the pursuit onto State Route 512 and then Pacific Avenue.

¶ 8 The police tried to deploy “stop sticks” in front of the Cadillac but Chouap continued southbound on Pacific Avenue, “bl[owing] through” a stop sign before turning onto a side street. 7 RP at 188–89. A pursuing officer saw a Pierce County sheriff in uniform standing at the trunk of his police vehicleparked alongside the road; the sheriff's vehicle had overhead emergency lights on. Pierce County Deputy Jeffrey Jorgenson testified that he and his partner, Deputy Heimann, intended to deploy “stop sticks” on the road to stop the Cadillac. 6 RP at 131. Chouap moved to the right of the roadway and accelerated, driving directly at Deputy Jorgenson and the sheriff's vehicle. Deputy Jorgenson ran toward the passenger side of the sheriff vehicle and jumped into the car. The pursuing officer testified that it appeared Chouap came “[f]airly close” to striking Deputy Jorgenson. 7 RP at 193. Deputy Jorgenson testified that he was concerned for his safety.

¶ 9 One of the pursuing officers ultimately pulled up and made contact with Chouap's vehicle, causing it to spin out. Chouap exited the vehicle while it was still rolling and began to flee on foot. With the help of a police dog, the officers apprehended Chouap.

PROCEDURE

¶ 10 The State charged Chouap with two counts of attempting to elude a pursuing police vehicle with an aggravating factor of endangering one or more persons other than the defendant or pursuing officer, and second degree assault with an aggravating factor of committing the crime against a law enforcement officer.

¶ 11 At trial, defense counsel and the prosecutor agreed to use confidential jury questionnaires. Based on the juror's answers, defense counsel and the prosecutor spoke with several potential jurors in open court while the rest of the venire was excused. Following trial, the court ordered the jury questionnaires sealed and both counsel agreed to the order.

¶ 12 A jury found Chouap guilty of count I, attempting to elude a pursuing police vehicle (Tacoma Police), count II, attempting to elude a pursing police vehicle (Lakewood Police), and count III, second degree assault. The jury answered “yes” to two special verdicts: (1) that Chouap's driving threatened physical injury or harm to a person other than himself or a pursuing law enforcement officer, and (2) that Chouap knowingly assaulted a law enforcement officer who was performing his official duties. Clerk's Papers (CP) at 81–82.

¶ 13 The trial court sentenced Chouap to concurrent sentences of 29 months for his convictions of attempting to elude a pursuing police vehicle, with a sentence enhancement for 12 months. In addition, the trial court imposed a consecutive, exceptional sentence of 120 months for Chouap's second degree assault conviction for a total of 161 months in confinement and 18 months of community custody.

ANALYSIS

I. Double Jeopardy

¶ 14 Chouap argues that his two convictions for attempting to elude a pursing police vehicle violate his constitutional right against double jeopardy. He reasons that the unit of prosecution is the alleged driving of a vehicle in a reckless manner while attempting to elude a police vehicle. The State responds that the convictions do not violate double jeopardy because the evidence shows two units of prosecution: the first ended when Chouap successfully eluded the Tacoma police and returned to normal driving; the second began when Lakewood police started pursuing him.

¶ 15 We review double jeopardy claims de novo. State v. Kelley, 168 Wash.2d 72, 76, 226 P.3d 773 (2010). The United States Constitution provides that a person may not be subject “for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Similarly, the Washington Constitution provides that a person may not be put in jeopardy twice for the same offense. Wash. Const. art. I, § 9. Both clauses prohibit multiple punishments for the same offense, but they do not prohibit separate punishment for different offenses. In re Pers. Restraint of Percer, 150 Wash.2d 41, 48–49, 75 P.3d 488 (2003).

¶ 16 “[D]ouble jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime.” State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998). To decide whether a defendant's rights against double jeopardy were violated, we must determine what “unit of prosecution” the legislature intended as the punishable act under that statute. In re Pers. Restraint of Davis, 142 Wash.2d 165, 172, 12 P.3d 603 (2000). “A unit of prosecution can be either an act or a course of conduct.” State v. Hall, 168 Wash.2d 726, 731, 230 P.3d 1048 (2010). Although unit of prosecution cases are of constitutional dimension, we resolve them by examining the relevant statute to determine legislative intent. Adel, 136 Wash.2d at 634, 965 P.2d 1072. If the legislature's intent is unclear, we construe the ambiguity in the defendant's favor by applying the rule of lenity. State v. Graham, 153 Wash.2d 400, 405, 103 P.3d 1238 (2005).

¶ 17 Chouap was convicted of two counts of attempting to elude a pursuing police vehicle under former RCW 46.61.024(1) (2008), which provides:

Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens.

¶ 18 Thus, the State had to prove that Chouap (1) willfully failed (2) to immediately bring his vehicle to a stop, (3) and drove in a reckless manner, (4) while attempting to elude police after a uniformed officer had signaled him to stop. Cf. State v. Tandecki, 153 Wash.2d 842, 848, 109 P.3d 398 (2005). The statute “proscribes unreasonable conduct in resisting law enforcement activities.” State v. Trowbridge, 49 Wash.App. 360, 362, 742 P.2d 1254 (1987). The legislature criminalized attempting to elude a police vehicle to address the dangers of high speed chases. State v. Malone, 106 Wash.2d 607, 611, 724 P.2d 364 (1986).

¶ 19 Chouap relies on the Washington Supreme Court's decision in Adel for the proposition that his conduct constitutes one unit of prosecution...