State v. David

• Decision Date: 08 August 2006
• Docket Number: No. 33403-8-II.,33403-8-II.
• Citation: 134 Wn. App. 470,141 P.3d 646
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Andrew James DAVID, Appellant.

Page 646

141 P.3d 646

134 Wn. App. 470

STATE of Washington, Respondent, v. Andrew James DAVID, Appellant.

No. 33403-8-II.

Court of Appeals of Washington, Division 2.

August 8, 2006.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

Jill Landes, Clallam County Prosecutors Office, Port Angeles, WA, for Respondent.

OPINION PUBLISHED IN PART

HUNT, J.

¶ 1 Andrew David appeals his conviction and sentence for vehicular homicide, resulting from his speeding vehicle's collision with another vehicle while driving with his blood alcohol level at twice the legal limit. He argues that (1) the vehicular homicide statute violates the separation of powers doctrine, (2) the trial court abused its discretion when it (a) admitted into evidence a photograph of the victim when she was alive and unharmed and (b) refused to admit into evidence the victim's toxicology report, (3) the trial court failed to instruct the jury on how to determine whether a blood test is valid, (4) the prosecutor committed misconduct during closing argument, and (5) his exceptional sentence violated Blakely.¹

¶ 2 In his Statement of Additional Grounds for Review,² David also argues that his trial counsel rendered ineffective assistance, his conviction violated the constitutional prohibition of ex post facto laws, and he was denied his right to a speedy trial. We affirm.

FACTS

I. VEHICULAR HOMICIDE

¶ 3 One late summer afternoon, Lorna Kuhlman was driving east on Highway 101 near her home in Sequim. Along the same stretch of highway, intoxicated Andrew David was driving west 25 m.p.h. or so above the posted 45 m.p.h. speed limit. Kuhlman entered the left-turn lane at the highway's intersection near the Dungeness River Bridge. As she began turning left, across the westbound lanes of Highway 101, David crashed into the passenger side of her car, killing her and injuring and rendering himself unconscious.

¶ 4 A witness who came to David's assistance smelled alcohol on his breath. State Trooper Richard Ward also smelled a strong odor of alcohol coming from David's vehicle and body. An aid crew rushed David to the hospital.

¶ 5 After David regained consciousness, Ward read him his Miranda³ rights, which David waived. Ward arrested David for vehicular homicide, read him a "special evidence warning,"⁴ and, with the assistance of medical personnel, drew David's blood to test his blood-alcohol content. The resulting toxicology report revealed that, at the time of the crash, David had a blood alcohol level of .16 grams per hundred milliliters.

¶ 6 Six days later, a Washington State toxicologist tested Kuhlman's blood during her autopsy. These blood tests revealed a blood-alcohol content of .02 grams per hundred milliliters, possibly attributable to post-mortem decomposition, and the presence of the following medications: carisoprodol, hydrocodone, meprobamate, paroxetine, diphenhydramine, acetaminophen, and chlorpheniramine.⁵

II. PROCEDURE

¶ 7 The State charged David with vehicular homicide, alleging two theories — that David drove recklessly and that he drove while under the influence of alcohol. The second theory also supported enhancement of David's sentence based on his four prior driving under the influence (DUI) convictions.

A. Proposed Bifurcation for Sentencing

¶ 8 David asked the court to bifurcate his jury trial and sentencing proceedings if the State planned to seek an enhanced sentence based on his prior DUI convictions. The trial court denied this request, reasoning that it could impose the sentencing enhancement based on David's prior convictions without a jury finding on this issue.

B. Evidentiary Rulings

1. Victim's toxicology report

¶ 9 At trial, David offered into evidence Kuhlman's Washington State Patrol "Death Investigation Toxicology Report" to prove his theory that Kuhlman drove at a "snail's pace" of five m.p.h. across the intersection because she was intoxicated, thereby contributing to the accident. In his offer of proof, David presented Kuhlman's autopsy toxicology report, which listed five medications in her system and a low blood-alcohol level, potentially attributable to post-mortem decomposition. David then read from the Physician's Desk Reference and on-line information about the side-effects of the medications in Kuhlman's system, asserting that they cause drowsiness and dizziness and carry warnings to use caution while driving. David did not include in his offer of proof any expert testimony to explain how the presence of these medications in Kuhlman's blood might have affected her driving.⁶

¶ 10 David argued that the toxicology report showed that (1) Kuhlman was the sole proximate cause of the crash because she was intoxicated and violated his right of way; or (2) he was not reckless because a reasonable person could not have foreseen that a person would drive as slowly as Kuhlman did when she crossed the intersection. Without commenting on the sufficiency of David's offer of proof, the trial court excluded the toxicology report as irrelevant. It reasoned that "all of the tests [for] superseding cause are from the standpoint of the defendant — what would the defendant have reasonably anticipated — and the reasons why an individual might have violated the rules of the road in any respect are relatively unimportant." Report of Proceedings (RP) 4/11/05 at 107-08.

¶ 11 The trial court did allow David (1) to present evidence of the manner in which Kuhlman had driven, (2) to present evidence that she had violated the rules of the road, and (3) to argue that he was not the proximate cause of Kuhlman's death. Jeffery Taylor, an accident witness, testified that Kuhlman's car "was coming at a slow rate of speed, just creeping out there," and that her car "just slowly came across" the intersection.

2. "In-life" photograph of victim

¶ 12 The State offered into evidence an "in-life"⁷ photograph of Kuhlman. David objected. The State argued that the photograph was relevant because "the State does indeed have a right to present this was the person who was killed. It's a real life human being." RP 4/11/05 at 80. Cautioning the State to discuss the photograph only briefly and to avoid a plea to the jury's passion or prejudice, the trial court admitted the photograph into evidence.

C. Jury Instructions

¶ 13 David requested an instruction defining the methods the jury should use to determine whether the blood tests were accurate.⁸ Ruling that David's proposed instruction related "more to the admissibility of the evidence rather than the weight," the trial court declined to give it. RP 4/14/05 at 11-12.

¶ 14 Without objection, the trial court instructed the jury on (1) a driver's general duty to use ordinary care while on a public highway; (2) the special duty required of a driver turning left at an intersection; (3) proximate causation; and (4) a "superseding intervening cause," to which David objected.

D. Closing Arguments

¶ 15 During closing argument, David argued to the jury, "If [the prosecutor in closing arguments] brings up stuff that was not talked about you have to think of what her motives are." RP 4/14/05 at 43-44. The trial court overruled the State's objection. RP 4/14/05 at 43-44.

¶ 16 In rebuttal, the prosecuting attorney argued, "[M]y motive is to [e]nsure that justice is done. I don't have any other [u]lterior motive." "I submit the true theory of the case, it's exactly what happened." RP 4/14/05 at 65. David did not object.

E. Verdict

¶ 17 The trial court gave the jury an interrogatory, special-verdict form that asked, "Has the jury found unanimously that at the time of causing the injury, the defendant was operating the motor vehicle (a) [w]hile under the influence of intoxicating liquor? . . . [or] (b) in a reckless manner?" Supp. Clerk's Papers (CP) at 23. The jury answered, "Yes," to both questions. The jury also found David guilty of vehicular homicide.

F. Sentence

¶ 18 At sentencing, the trial court determined that (1) David had an offender score of zero, (2) David had four prior DUI convictions, and (3) his unenhanced standard-range sentence for vehicular homicide was 31 to 41 months. But David's four prior DUI convictions increased his standard-sentencing range by 96 months. The trial court sentenced David to 132.5 months confinement, sentencing him in the middle of the standard sentencing range.⁹

¶ 19 David appeals.

ANALYSIS

I. SEPARATION OF POWERS

¶ 20 David's argument presents an issue of first impression. He first argues that the vehicular homicide statute, RCW 46.61.520, violates the separation of powers doctrine because the statute (1) fails to define the essential elements of the offense, specifically, proximate causation; and (2) thus, requires the courts to supply missing definitions, which is an improper delegation of legislative authority to the judiciary. We disagree.

¶ 21 A fundamental principle of our American constitutional system is that governmental powers are divided among three separate and independent branches — legislative, executive, and judicial. State v. Osloond, 60 Wash.App. 584, 587, 805 P.2d 263, review denied, 116 Wash.2d 1030, 813 P.2d 582 (1991). Our Washington state constitution does not contain a formal separation-of-powers clause. Nonetheless, separation of powers is a vital doctrine, presumed throughout our state history from the division of our state government into three separate branches. Carrick v. Locke, 125 Wash.2d 129, 134-35, 882 P.2d 173 (1994).

¶ 22 The separation-of-powers doctrine serves mainly to ensure that fundamental functions of each branch of government remain inviolate. Carrick, 125 Wash.2d at 135, 882 P.2d 173. This doctrine is violated when "the activity of one branch threatens the independence or integrity or invades the prerogatives of another." State v. Moreno, 147 Wash.2d 500, 505-06, 58 P.3d 265 (2002) (quoting Carrick, 125 Wash.2d at 135, 882 P.2d 173).

¶ 23 There are several categories of...