State v. Constance
| Decision Date | 30 December 2014 |
| Docket Number | 44150-1- II,43974-3-II,40504-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DINO J. CONSTANCE, Appellant. |
UNPUBLISHED OPINION
Dino Constance was convicted of three counts of solicitation to commit first degree murder[1] and one count of solicitation to commit second degree assault.[2] His conviction for the third count of solicitation to commit first degree murder was affirmed on direct appeal. State v. Constance, 154 Wn.App. 861 865, 226 P.3d 231 (2010).[3] Constance now appeals two superior court orders: an order denying his first CrR 7.8[4] motion for relief from judgment, and an order granting in part his second CrR 7.8 motion for relief from judgment.
Concerning the order denying his first CrR 7.8 motion, Constance argues that the superior court's finding that his counsel did not prevent Constance from testifying fails to support the conclusion that his right to testify was not violated. In making this argument, Constance urges us to abrogate the rule that a claim for denial of the right to testify requires a showing that counsel actually prevented the defendant from testifying. We decline this invitation to abrogate our long-standing rule and affirm the superior court's first CrR 7.8 order.
Concerning the order partially granting his second CrR 7.8 motion Constance argues that (1) double jeopardy precludes consecutive sentences on Counts I and II, (2) the State committed numerous Brady[5] violations, and (3) the State's Brady violation that required a retrial on Count IV also requires a retrial on Counts I-III. Constance also argues that trial counsel provided ineffective assistance by failing to (4) request a Franks[6] hearing, (5) make "motions" challenging the recording of Constance's voice as he talked to trial counsel on a jail phone, and (6) propose a true threats instruction. We reject all of Constance's arguments and affirm the superior court's second CrR 7.8 order. Consistent with that order, we remand for a retrial on Count IV, criminal solicitation to commit second degree assault.
Constance also filed a statement of additional grounds (SAG), claiming (1) the State committed additional Brady violations (2) his counsel provided ineffective assistance in additional ways, (3) the State failed to show cause at the show cause hearing on his first CrR 7.8 motion, (4) the judge was biased, (5) the State violated discovery rules and the Public Records Act, [7] and (6) the State failed to preserve evidence after trial. We reject Constance's SAG claims.
A jury found Dino Constance guilty of three counts of criminal solicitation to commit first degree murder for separately soliciting three different individuals to kill his ex-wife Jane Koncos, and one count of criminal solicitation to commit second degree assault for soliciting Zachary Brown to assault Koncos. Each count was based on the solicitation of a separate witness-the unique individual who Constance solicited to harm Koncos in each case. We summarize these counts as follows:
The jury received an instruction to consider each count separately.
Constance directly appealed only his conviction for Count III, arguing that the superior court erred by denying Constance's motion to suppress the interception of his conversation with Castellanos. Division One of this court affirmed Constance's conviction on Count III, but did not address material omissions or misrepresentations in the affidavit supporting the application to intercept. Constance, 154 Wn.App. at 865, 877.
While Constance's direct appeal was pending, Constance filed his first motion for relief from judgment under CrR 7.8. The superior court granted Constance an evidentiary hearing on whether Constance's trial counsel violated Constance's right to testify in his own defense. At this evidentiary hearing, the superior court heard testimony from Constance, Constance's father, Constance's mother, and Constance's trial counsel.
The superior court issued findings of fact and conclusions of law on Constance's first CrR 7.8 motion, ruling that Constance had not established that trial counsel actually prevented Constance from testifying, and thus, had not proven an ineffective assistance of counsel claim. The superior court entered a final order denying Constance's first CrR 7.8 motion. Constance appealed this order.
After filing a notice of appeal of the superior court's CrR 7.8 order, Constance filed a second CrR 7.8 motion, challenging all four counts. Again, the superior court scheduled an evidentiary hearing. We stayed the appeal of the superior court's first CrR 7.8 order pending the outcome of the second CrR 7.8 motion.
After the evidentiary hearing on Constance's second CrR 7.8 motion, the superior court concluded that the State had committed a Brady violation warranting reversal of Count IV (solicitation to second degree assault for soliciting Zachary Brown), but not Counts I, II, or III. The superior court denied Constance's motion as to Counts I, II, and III, and made numerous, specific findings of fact and conclusions of law. The superior court granted Constance's motion as to Count IV, vacating the judgment and sentence and granting him a new trial on that count.
Constance then appealed the superior court's order partially granting his second CrR 7.8 motion, arguing that the superior court should have also reversed Counts I, II, and III. We lifted the stay on Constance's appeal of the first CrR 7.8 order, and consolidated it with the appeal of the second CrR 7.8 order. Order Lifting Stay, State v. Constance, No. 40504-1-II, consolidated with No. 43974-3-II (Wash.Ct.App. March 22, 2013). Below is a summary of the superior court's findings of facts and conclusions of law.
Constance was initially represented by pretrial counsel, who procured an investigator and conducted witness interviews. Pretrial counsel withdrew from Constance's case and was replaced by trial counsel. Pretrial counsel turned Constance's case file over to trial counsel. Trial counsel hired an investigator who conducted background checks on witnesses and assisted with interviews. Trial counsel spoke with Constance many times prior to trial.
Detective John O'Mara of the Clark County Sheriffs Office investigated Constance's case for the State. Detective O'Mara's internal affairs history described numerous internal affairs investigations regarding his conduct, including "failure to make proper reports, and to follow department guidelines and procedures." Clerk's Papers (CP) (43974-3-II) at 3978. The State did not provide Constance with Detective O'Mara's internal affairs history, nor did trial counsel request them. The superior court concluded that there was no Brady violation related to Detective O'Mara's internal affairs history.
Michael lived with his son Jordan, and Constance.[8] Michael testified at Constance's trial that Constance repeatedly offered him several thousand dollars to seriously injure or kill Koncos. Constance enticed Michael to commit these crimes separately from his enticement of Jordan.[9]
1. Michael's Son's Child Molestation Conviction
Michael's other son, Michael Craig Spry (Craig)[10] was convicted of first degree child molestation, and was serving an indeterminate prison sentence when Michael and Jordan cooperated with law enforcement in Constance's case. The State did not discuss Craig's sentence or prison conditions with Michael or Jordan, and did not imply that Michael or Jordan's failure to cooperate would affect Craig's sentence or prison conditions. Neither the State nor trial counsel searched for or possessed information about Craig's conviction. The superior court concluded that there was no Brady violation or ineffective assistance of counsel related to Craig's convictions.
2. Investigation of Craig's Child Molestation Charges
Officer Bradley Chicks of the Washougal Police Department, the officer who investigated the child molestation charges that led to Craig's conviction, believed that Michael was interfering with the investigation and tampering with a witness. When Officer Chicks confronted Michael, Michael denied the accusations. Officer Chicks considered referring the matter for prosecution, but decided against conducting an additional investigation, or referring the case for prosecution. Officer Chicks recorded this information on a police report. Neither the State nor trial counsel searched for or possessed this information. The superior court concluded that there was no Brady violation or ineffective assistance of counsel related to Michael's alleged interfering or tampering with a witness.
3. Eisele 's and Jones's Allegations Against Michael
Michael's ex-wife Linda Eisele and Michael's former friend Gordon Jones stated that they would have provided testimony against Michael in Constance's trial. Eisele would have testified that Michael engaged in sexual misconduct. Eisele would have also testified that Michael did not tell her that Constance solicited him to kill Koncos prior to Constance being charged. Jones would have testified that, in his opinion Michael was a liar and violent towards women. None of the allegations made by Eisele or...
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