State v. Collins

• Decision Date: 23 June 2014
• Docket Number: No. 71058-3-I,71058-3-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. SCOTT EUGENE COLLINS, Appellant.

STATE OF WASHINGTON, Respondent, v. SCOTT EUGENE COLLINS, Appellant.

No. 71058-3-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: June 23, 2014

UNPUBLISHED OPINION

SCHINDLER, J. — Scott Eugene Collins seeks reversal of multiple jury convictions arguing double jeopardy barred retrial following a mistrial. In the alternative, Collins asserts the eight convictions for possession of stolen property violate double jeopardy and imposition of a consecutive sentence under the "Hard Time for Armed Crime Act" (HTACA), LAWS OF 1995, chapter 129, section 21 (Initiative Measure No. 159), for the three counts of possession of a stolen firearm and the three counts of unlawful possession of a firearm violates the prohibition against cruel punishment. We hold the retrial did not violate double jeopardy and the court did not err by imposing the consecutive sentences under the HTACA. We accept the State's concession that the eight convictions for possession of stolen property violate double jeopardy and all but one of the convictions must be vacated. Accordingly, we affirm in part, reverse in part, and remand for resentencing.

FACTS

Steven Brent worked as a corrections officer at the Cowlitz County Jail. On December 5, 2009, Brent got off work at 4:00 p.m. When he arrived home, Brent "knew something was wrong" because "my dog came in from around the outside of my garage and my dog is an inside dog," and there was a "two-inch skid mark the full length of the driveway." Brent said the front door was "kicked in, the doorframe was busted," and "[c]lothes, anything that was on the dressers were just thrown and a random pattern[.] Every room in the house was ransacked." A number of his belongings were stolen, including his 12-guage shotgun and a .22 caliber pistol revolver, a mountain bike, televisions, "computers, wood splitter, chainsaws, boat, trailer, boat loaders, [and] fishing gear." Brent estimated the value of the stolen property was between $12,000 and $15,000. Brent called 911 to report the burglary.

Cowlitz County Sherriff Deputy Danny O'Neill responded to the 911 call. Deputy O'Neill suggested Brent find out whether his next-door neighbor noticed "unusual vehicles . . . in the driveway" and check Craigslist. Deputy O'Neill told Brent that he "suspected his property went to 1306 Ross Street in Kelso."

The next day, Brent and a friend "went to the pawnshops first then we started driving around town" looking for the stolen property before going to 1306 Ross Street. When they went to the house located at 1306 Ross Street, Brent saw his stolen mountain bike and his fishing net in the alleyway. Brent called the police. The police verified that Scott Eugene Collins lived at 1306 Ross Street and obtained a warrant to search the house. When the police executed the search warrant, they found propertythat had been stolen from Brent and a number of other victims, including a semiautomatic pistol and a Dodge Durango. The police also found marijuana.

The State charged Collins with burglary in the first degree while armed with a firearm, residential burglary, three counts of unlawful possession of a firearm in the first degree, three counts of possession of a stolen firearm, eight counts of possession of stolen property, possession of a stolen vehicle, identity theft in the second degree, and possession of 40 grams or less of marijuana.

Collins filed a motion to dismiss the burglary charges under State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986), and filed a motion to sever the three counts of unlawful possession of a firearm. The court granted the motion to sever. The court reserved ruling on the motion to dismiss the burglary charges.

At the beginning of trial, the defense moved to exclude any reference to "the felony possession of a firearm charges." The prosecutor agreed to instruct the witnesses "not to mention the fact that Mr. Collins is a convicted felon or that he was investigated for the unlawful possession of firearms in the first degree."

Following jury selection, the court granted the defense motion to dismiss the burglary charges. The defense attorney asked the State to "please advise your witnesses carefully how to handle the -- you know, the issues regarding the burglary discussions or anything." The prosecutor argued the witnesses should be allowed to testify about the burglaries:

The fact that they were burglarized is self-evident from the fact that. . . they lost their stuff, so if they can't say, we were burgled, how did their stuff get taken? . . . [T]hey need to testify to the fact that it's stolen.

The court agreed, "I don't see -- that doesn't prejudice your Client because he's not charged with burglary."

The court instructed the jury not to consider the burglary charges:

When we first started this trial a couple of days ago, I read to you a number of charges that you were going to be considering in this case, and that list is now changed. You -- you were originally -- you will not be presented information related to the five counts of alleged burglary, and nor will you be asked to consider those charges in your deliberations.

The State called Brent as the first witness to testify at trial. The State then called Deputy O'Neill. During direct examination, the prosecutor asked Deputy O'Neill whether he talked "to Mr. Brent about what he might do to be proactive about the burglary" and, if so, what he told Brent. In response, Deputy O'Neill testified, "I told [Brent] I had a suspect that I felt was probably involved in several of the north-end burglaries that was living --." The defense objected.

Outside the presence of the jury, the defense attorney moved for a mistrial. The attorney argued Deputy O'Neill violated the motion in limine order by suggesting Collins was a prior suspect in "a rash of other burglaries" and the testimony was "extremely prejudicial."

The prosecutor argued there was "no bad faith in asking . . . that question" and pointed to the "very specific testimony in . . . Deputy O'Neill's report that relates to that question." The prosecutor argued, in pertinent part:

[T]he question was framed in such a way, what did you tell him to do? I was not attempting to elicit anything about that, . . . Deputy O'Neill had directed Mr. Brent to look on Craigslist for his property and then to go sit outside 1306 Kelso. And so that explains why the victim, Mr. Brent, and [his friend] went and sat outside 1306, North Kelso. They saw the -- they saw the bicycle there. That -- that's the context for that.

The court granted the motion for a mistrial. The court ruled, in pertinent part:

I'm concerned about the statement and . . . what I can do about that with the jury. I mean, I think that's an unfortunate circumstance, but I don't know that, given that the issue's raised and a mistrial's been requested, I think that probably, much to my dissatisfaction, I don't really have any opportunity -- any ability to not do that. We had specific motion in limine on that, which was granted. I'm not going to make any other rulings with regards to dismissal. If that is something that Counsel wishes to bring in a formal motion, which probably needs to be set for some sort of -- a little more extended than I can do at this time. I'm not going to dismiss the case. So the case will -- will remain pending and will need to be reassigned.

Following the decision to grant a mistrial, Collins filed a "Motion to Dismiss Due to Prosecutorial Mismanagement/Misconduct" under CrR 8.3(b). Collins argued that because the prosecutor "admittedly failed to properly instruct its witnesses as instructed by the court, . . . such conduct is recklessly indifferent to both the court ruling and the defendant's rights, and impermissibly provoked a mistrial and requires dismissal of this case with prejudice."

Defense counsel filed a declaration in support of the motion to dismiss. The defense attorney states that "Deputy O'Neill's response was verbatim from his report" and the defense was "forced to called [sic] for a mistrial." The attorney states that "[a]fterwards, [the] Prosecutor . . . apologized, and said he should have given better instruction to the deputy." The attorney also states that "more information is needed to assist the court to determine whether the prosecution actually instructed their witnesses regarding the defense's motion in limine as ordered by the court."¹

The State filed a response. In his declaration, the prosecutor states that he neither intentionally nor recklessly attempted to cause the mistrial, nor did he intend to elicit information that would be in violation of the motions in limine. The prosecutorstates that he told Deputy O'Neill about the rulings in limine and instructed Deputy O'Neill "not to discuss the burglaries that had been charged in this case and that they had been dismissed." The prosecutor refers to Brent's testimony that he went "to pawn shops with his friend looking for his stolen property and that he had ultimately ended up outside 1306 Ross where he saw his bicycle and fishing net." The prosecutor also states that he did not prepare a "script of questions" for the direct examination of Deputy O'Neill but, "instead[,] I used a copy of his police report from the incident." The prosecutor explained that "[t]he question I asked was directly based on the following paragraph from the police report (2nd paragraph of attached report)" and provided a copy of the police report. Deputy O'Neill's police report states, in pertinent part:

I explained to the victim in this case things he could do to help me with the case. I asked if he would check Craigs list [sic] for his boat, I asked him to check with his next door neighbor for unusual vehicles seen in the driveway. I told him I suspected his property went to 1306 Ross Street in Kelso. I told him he could drive by if in the area and report anything he thought was his.

The court rejected the argument of mismanagement or intentional misconduct by the...